We’d Go Well Together: A Critical Race Analysis of Marijuana Legalization and Expungement in the United States

Abstract

In the U.S., many state and local governments have either legalized or decriminalized small quantities of marijuana for recreational or medicinal use. Reforming these laws has had significant public support, with reformers arguing that dissolving prohibitions on use as a policy remedy, or recompense, for the economic and human cost born by African American communities in the so-called “War on Drugs.” However, we do not yet know what explains the shift in support for allowance, or, more specifically, what has widened the policy window for legislative reform across the country. Using the analytic framework of Critical Race Theory (CRT), specifically, Bell’s (1980) notion of issue convergence, this paper highlights how this specific policy change continues to reproduce inequality in the maintenance of racialized interests in terms of who benefits and is burdened by reform. It concludes by recommending additional legislative action, such as automatic expungements for certain marijuana-related crimes, a legal remedy that can limit the collateral consequences experienced by those with criminal records.

Keywords:

• Marijuana
• reform
• expungement
• race

Acknowledgments

The author thanks the Faculty Leaders Program in Policy Analysis and Research at Pardee RAND Graduate School for the opportunity to refine the larger project of which this paper is a part, and the anonymous reviewers of Public Integrity for their comments on previous versions of this paper, which substantially improved this manuscript.

Notes

1 National Survey of Drug Use and Health. 2016.

2 No longer illegal for specified amounts and types of use (e.g., medicinal or recreational).

3 Illegal, but no longer criminal (e.g., like speeding).

4 I use “allowance” throughout as an antonym to prohibition for variation in style, particularly where a distinction between legalization and decriminalization is not necessary.

5 Sin tax (n): a tax on items considered undesirable or harmful, such as alcohol or tobacco.

6 NCSL, supra note 5.

7 This can be called non-design.

8 Jon Gettman. Marijuana arrests in Colorado after the passage of amendment 64. Drug Policy Alliance.

9 Colorado Division of Criminal Justice, Department of Public Safety. MJ Impact – Offense/Arrest/Court Filing.

10 Allowance is permitted for persons 21-years old and up; In Colorado, a person may possess no more than 1 ounce of marijuana for recreational use.

11 Vice (noun): criminal activities involving prostitution, pornography, or drugs.

12 Illinois Department of Commerce and Economic Opportunity. Adult-use cannabis social equity program. Retrieved from https://www2.illinois.gov/dceo/CannabisEquity/Pages/default.aspx

13 A.B. 259, 79th Reg. Sess. (NV. 2017).

14 Code for America. Los Angeles County DA & Code for America Announce Dismissals of 66,000 Marijuana Convictions, Marking Completion of Five-County Clear My Record Pilot. [Press release]. Retrieved from https://www.codeforamerica.org/news/los-angeles-county-da-code-for-america-announce-dismissals-of-66-000-marijuana-convictions-marking-completion-of-five-county-clear-my-record-pilot

15 Proposition 64, 2017-2018 Reg. Sess. (CA 2016).

16 HB 1438, 101^st Reg. Sess. (IL 2019).

17 S 6579A, 2019-2020 Reg. Sess. (NY. 2019).