April 20, or 4/20, is a day when many people across the world celebrate marijuana culture by toking up, jamming out to tunes and filling up on munchies.
But the American Civil Liberties Union (ACLU) is using the unofficial cannabis holiday to draw attention to a serious issue: Despite the growing number of states that are enacting legalization laws, people of color are still much more likely to be arrested for marijuana than white people are—even though consumption rates are virtually identical across races.
In a new report released on Monday, ACLU reveals that while overall arrests are way down in states that have ended prohibition, racial disparities in remaining enforcement persist in those places. Meanwhile, some still-criminalized states are arresting black people for cannabis at almost ten times the rate that whites are busted.
Here are the key findings of the report—“A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform”—which is a follow-up to a similar study the organization released in 2013 that drew broad attention to unfair cannabis arrests rates at a time when legalization was just starting to become a major issue in American politics:
Marijuana Arrests Are Still Widespread Across The U.S.
Marijuana arrests nationally are down 18% since 2010, but there has been an uptick since 2015—even though more states are enacting legalization or decriminalization policies.
Cannabis arrests accounted for 43 percent of all drug arrests in 2018, the most recent year the report covers, and an overwhelming majority of those arrests—89.6 percent—were for possession alone.
Extreme Racial Disparities In Marijuana Enforcement Persist
Overall, black people are 3.64 times more likely than white people to be arrested for marijuana possession, even though usage rates are comparable. The trend toward legalization and decriminalization hasn’t reduced national trends in disparate enforcement—and in some parts of the country, they have worsened.
African Americans are more likely to be arrested for marijuana possession in every single state in the country.
“Racial disparities in marijuana possession arrests exist across the country, in every state, in counties large and small, urban and rural, wealthy and poor, and with large and small Black populations,” the report says. “Indeed, in every state and in over 95 percent of counties with more than 30,000 people in which at least 1 percent of the residents are Black, Black people are arrested at higher rates than white people for marijuana possession.”
Marijuana Arrests Decrease After Decriminalization, But Drop More Sharply In Fully Legalized States
Not surprisingly, states that legalized cannabis saw decreases in marijuana possession arrests—though ACLU found that some of these had been experiencing a downward trend even before prohibition was ended.
States with less far-reaching policies that simply decriminalize possession also see reductions in arrests, but not as much as in those places where prohibition is ended altogether. Cannabis possession bust rates are roughly eight times higher in decriminalized states than in ones that have fully legalized, though they are lower than in those where broad criminalization is still the law.
When it comes to arrests for selling marijuana, states with legalization saw an 81.3 percent drop between 2010 and 2018, while decriminalized states experienced a 33.6 percent reduction over that period.
Racial Disparities Persist Even Legalized Or Decriminalized States
Even while overall marijuana arrests are down in legalized and decriminalized states, black people are still much more likely to be busted for cannabis than white people are. “In every state that has legalized or decriminalized marijuana possession, Black people are still more likely to be arrested for possession than white people,” ACLU found.
“Most jurisdictions that have enacted progressive marijuana policy have failed to do so from a foundation of racial justice,” the report warns. “As such, though legalization and decriminalization appear to reduce the overall number of marijuana possession arrests for black and white people alike, such laws have not substantially reduced, let alone eliminated, the significantly larger arrest rates of black people.”
While on average legalized states have lower racial disparities in marijuana possession arrests compared those that have only decriminalized or where prohibition is in full force, Maine and Massachusetts—which both voted to legalize cannabis in 2016—had larger racial disparities in 2018 than they did in 2010.
“The one common finding across every state and the vast majority of counties is that black people are more likely to be arrested for possessing marijuana than white people, regardless of whether possession is illegal, legal, or decriminalized in their state,” the report concludes.
ACLU also reported that shortcomings in police data make it hard to get a full understanding of the unfair impact marijuana enforcement has across racial lines. For example, FBI arrest numbers do not distinguish between Latinos and those of other races, obscuring the particular impact that prohibition has on brown as well as black people.
Along with the report, ACLU launched an online tool that makes it easy for people to see just how discriminatory marijuana enforcement practices are in their own states.
Montana is the worst offender, with black people there being 9.6 times more likely to be arrested for marijuana than white people. Kentucky was not far behind with a disparate rate to the tune of 9.4.
In Colorado, the state with the least discriminatory enforcement rate, African Americans are still 1.5 times more likely to be busted for cannabis than white people are.
Zooming in further to the county level, ACLU found that even within states there are vast differences in how cannabis laws are being enforced.
In Franklin County, Massachusetts, a black person is 117 times more likely to be busted for marijuana possession than a white person is.
“The U.S. has waged a failed, devastating, decades-long war on drugs, including marijuana, in specific communities. Rounding up hundreds of thousands of people every year—millions every decade—for marijuana offenses, this racist campaign has caused profound and far-reaching harm on the people arrested, convicted, and/or incarcerated for marijuana offenses,” ACLU said. “Such harm cannot be undone, but as a country we can acknowledge, repair, and rebuild so that our future looks nothing like our prohibitionist past.”
Looking ahead, the organization is recommending that the federal and state governments legalize marijuana, but that they not stop there. In addition to expunging prior convictions and granting clemency to people still incarcerated on cannabis changes, the group is urging that newly legal markets be made equitable and accessible to people from communities that have been most harmed by the war on drugs.
It’s past time that we not just legalize marijuana, but do so in a way that tackles racial disparities head-on.
The MORE Act will do just that.
— ACLU (@ACLU) April 20, 2020
“The question no longer is whether the U.S. should legalize marijuana—it should—or whether marijuana legalization is about racial equity—it is. It is also no longer about whether all levels of government should redirect resources away from prosecution of marijuana and toward public health investments and community collaborations—they should,” the report says.
“Rather, the question is: When states legalize, how can they do so through a racial justice lens to address the panoply of harms that have been selectively aimed at Black and Latinx communities for decades?” it continues.
Although opponents of marijuana legalization have pointed to previous data showing ongoing racial disparities in enforcement post-prohibition as a reason to argue against the policy change, ACLU is very clear that their new report should not be used to push for continued criminalization.
“In short, legalization by itself means fewer black people getting arrested. Conversely, prohibition means more—many, many more—black people getting arrested, jailed, convicted,” Ezekiel Edwards, who authored the report and is the director of the organization’s Criminal Law Reform Project, said in an email. “So it would be wrong to suggest that legalization is a wash regarding alleviating the negative impacts of marijuana criminalization.”
He also cautioned against stopping at simply decriminalizing cannabis possession, a policy that some legalization opponents say they support as an alternative between incarceration and a commercial marijuana market, pointing out that there are “more black people getting arrested in states that decriminalized than those that have legalized.”
That said, he noted that “legalization on its own does not address the racial disparities in marijuana arrests or achieve racial equity more broadly in marijuana reform.”
It is crucial, Edwards argued, for states to “center legalization in racial justice.”
“This means not only including equity-focused legislation led and informed by communities directly harmed by prohibition, but also tethering legalization to changing the way police departments treat communities of color,” he said. “If marijuana is legalized without reducing racial profiling and the unnecessary harassment and surveillance of people because of the color of their skin or the neighborhood they live in, there will be a drop in marijuana arrests but no tangible impact on the racial disparities of those arrests, or on other arrests for other petty offenses regarding which we consistently find the police treating people differently based on race.”