Marijuana legalization has the potential to make a lot of people very rich — a lot of white people, that is. It’s common knowledge that pot prohibition disproportionately affected people of color, but most states have made it difficult for black and brown people to get involved in the legal weed business.
Recently, however, more lawmakers around the country have come to terms with the need to account for race when putting together the details of marijuana legalization. And yet figuring out how, exactly, to write laws that acknowledge the racial biases of the past has proven difficult, mostly due to the legal complications surrounding affirmative action.
But a group of lawyers and activists are now offering a solution. On Friday, they are releasing a piece of model legislation (see PDF below) that addresses every aspect of marijuana legalization — from what will remain illegal to where people can legally get high — with the goal of compensating for past and present racial biases. Among other things, the proposal aims to promote diversity in the pot industry, and encourages states and municipalities to set aside a significant portion of marijuana tax revenues to provide “drug war reparations” to communities of color.
“People are looking for very specific tangible, impactful things to do and this approach has been as aspirational as it has been pragmatic,” said Ayanna Pressley, a Boston city council member. Massachusetts voters approved recreational marijuana last November, and Pressley hopes to convince state lawmakers to adopt some aspects of the model legislation. “There’s so many components, and they’ve addressed it all, from housing to workforce development to the opportunity to address bias in policing.”
Even though studies consistently show that people of all races use and sell weed at about equal rates, black people in every American county are between two and 10 times more likely to get arrested for pot-related crimes. Twenty-eight states and Washington, D.C., have now legalized the medical or recreational use of marijuana, but nearly all of those places restrict people with drug-related felonies from participating in the weed business, a policy that disproportionately affects minority entrepreneurs.
As of early 2016, less than 1 percent of storefront marijuana dispensary owners in the United States were black. Only California and Massachusetts guarantee that people with pot-related felonies can participate in the recreational industry, though both states still restrict drug felons from working on the medical side of the business.
Although weed legalization activists had long been told to avoid mentioning race, because some studies and polls showed the subject would turn off voters, conversations around equity and diversity in the cannabis industry have become more common in the past year. Still, some proposals remain controversial. Last summer, Oakland’s pot regulation process ground to a halt due to squabbles over a proposal that aimed to help black entrepreneurs. Laws that restrict affirmative action have also complicated attempts to account for the racial biases of the war on drugs.
“It has to be very nuanced, not because of intention but just because of legality,” said Los Angeles City Councilman Bob Blumenfield, who is currently working on the city’s weed regulations. “We can’t legally create percentages. We can only do things to encourage minority participation.”
Beyond promoting diversity in the pot industry, the model legislation offers a comprehensive plan for what policymakers call justice reinvestment — colloquially known as “drug war reparations.” The proposal asks states to dedicate 5 percent of total marijuana tax revenue — plus an additional 15 percent after covering regulator salaries and other government costs — to an “Office of Justice Reinvestment,” which would disperse the funds for job training and economic development in communities disproportionately affected by the war on drugs.
Although the attempt to compensate for nearly a century of racially disproportionate law enforcement is unique in American history, the concept of “justice reinvestment” was inspired by programs that use data to help states reduce incarceration costs and reinvest those savings into programs proven to reduce recidivism.
The recreational marijuana laws in Massachusetts and California already include provisions about reinvesting tax dollars from legal pot back into minority communities, but the details of how that will work in Massachusetts have yet to be determined. In California, the funds for justice reinvestment are capped at $50 million a year, and therefore will not increase at the same rate as profits and tax revenues.
The model legislation also asks states and municipalities to compile regular reports on the racial and demographic makeup of the legal weed industry, partly inspired by a situation in Maryland. The state has a program that gives minority-owned businesses a leg up in obtaining state contracts for things like road construction, but the attorney general removed a medical marijuana law provision that would have given minority applicants extra points during the cannabis business licensing process. He argued that affirmative action couldn’t be justified because there was no proof of discrimination in an industry that technically didn’t yet exist.
“It’s a little ridiculous, because what they’re saying is you gotta wait until the harm is done, and then you have to fight to change it after the fact,” said Maryland delegate Cheryl Glenn, a co-author of the state’s medical marijuana law. In the end, nearly all of the people chosen to receive licenses this past fall were white men, leading to lawsuits and local uproar.
Other key policy proposals in the model legislation include much stronger protections than anything currently on the books for employees, students, parents, renters, loan applicants , and people living in homeless shelters and public housing. As is currently the case in Oregon, the legislation would allow people to get their criminal records expunged for any pot-related offenses that would no longer be considered illegal.
Led by the Minority Cannabis Business Association, the model legislation is the work of several of the most influential people of color in cannabis, including Shaleen Title, who helped draft the recreational legalization initiatives in Colorado and Massachusetts, and Kayvan Khalatbari, a prominent Colorado weed entrepreneur who recently announced plans to run for mayor of Denver.
Of course, not every legislator is interested in writing a marijuana legalization law that accounts for the damage done by the war on drugs. Regulations are typically negotiated with representatives from law enforcement and other groups that generally do not believe people with criminal records deserve a chance to profit from legal pot. Some aspects of the model legislation are relatively uncontroversial, but others, such as the clause that suggests public use of marijuana should restricted in the same fashion as tobacco, or the protections for cannabis-using employees, will likely face fierce opposition from conservative regulators and chambers of commerce.
“I’m not necessarily expecting a legislature would just introduce it completely, although that would be great,” said Title, one of the authors of the model legislation. “I’m expecting that they’re looking at it alongside other legislation, and then picking and choosing the best pieces.”