Editor’s note: This is the first article in an ongoing series that looks at the growing legal marijuana industry and its effect on the black community.
Twenty years ago, Rico Garcia was 21 when he got caught up in a marijuana sting in Colorado with a friend who wanted to buy some weed. The seller turned out to be a police informant, and Garcia and his friend were arrested.
“The police came and arrested us and said we were selling weed,” says Garcia, now a 41-year-old marijuana advocate who runs Cannabis Alliance for Regulation and Education. “My friend said it was his, but … under Colorado law at the time, 8 ounces was possession with intent and I got a felony.”
Garcia says he was a first-time offender and a public defender got him to agree to accept a plea deal. He didn't realize the full ramifications of having such a charge on his record.
“They said, ‘No jail’—that’s how they get brown people—and I said, ‘That sounds nice,’” recalls Garcia, who is Puerto Rican. He says he got four years’ probation and was released from it in two years, but the felony is still affecting his life.
“You’re pretty much disqualified for housing. … Most who could give you a loan for a car or house give you a different rate or simply won’t lend to you. You can’t own a firearm, even in a pro-gun state; you can’t get any government grants or hold certain occupational licenses.”
Even though medical and recreational use of marijuana is legal under most circumstances in Colorado, Garcia’s felony precludes him from being part of the weed boom the state is enjoying, a problem that plagues many people of color trying to get into the weed business. There’s also a debate about the fate of nonviolent offenders currently incarcerated for weed crimes in states where recreational marijuana is now legal. Some marijuana advocates support the idea of state pardons for offenders incarcerated for such crimes as more states consider legalizing recreational marijuana.
Much has changed since 2012, when Colorado and Washington became the first states to legalize recreational use of marijuana. Both states began selling and taxing recreational weed in 2014. (Medical marijuana is also legal in both states and 23 others as well as in Washington, D.C.) At the time, Colorado Gov. John Hickenlooper called it a “risky” choice and stood with critics who worried about public-safety issues, including increased drug use among children, and the legislation’s direct conflict with federal law, which still considers weed an illegal drug on par with heroin.
But in the two years since Colorado started selling recreational weed, the state has experienced a green rush in marijuana cash. Last year the state raised $135 million in taxes from the sale of recreational and medical marijuana, a 42 percent increase in revenue in 2014.
Since then, two other states—Alaska and Oregon—as well as D.C. have legalized recreational marijuana. And in November, at least five states—including California, Arizona, Massachusetts and Nevada—will give voters the choice to make recreational marijuana legal.
Attitudes toward marijuana have also grown more accepting across the country. A recent survey found that 61 percent of Americans support marijuana legalization.
“A lot of things people worried about didn’t happen. … We haven’t seen the sort of threats to public safety that would cost lives or a spike in addiction uses,” says Andrew Freedman, director of marijuana coordination for Colorado. “Still, some battles haven’t reached the potential of everything that voters wanted from this.”
One of those battles is pardoning state inmates imprisoned for nonviolent marijuana offenses and giving them the tools to clear their criminal records since the legality of weed in Colorado and other states has changed. In May and June, President Barack Obama granted clemency to 100 people, most of whom had been convicted of drug-related crimes, mostly involving crack cocaine. To date he’s commuted the sentences of 348 people in an ongoing attempt to mitigate lengthy sentences for nonviolent crimes.
But there has been some debate among marijuana advocates over whether lawmakers and voters would support such an effort involving weed crimes because they had to walk such tightropes to get legislation for medical and recreational marijuana approved in the first place. California—where most advocates expect Proposition 64 (pdf), the Adult Use of Marijuana Act, to pass in November in a state that has had a medical-marijuana program for 20 years—could set a national standard for the fate of nonviolent marijuana offenders caught up in the prison system.
Not only does Proposition 64 reduce the current penalty for selling marijuana for nonmedicinal purposes from up to four years in prison to six months in jail and a fine of up to $500, but it also includes big changes for those previously convicted of marijuana crimes. Those serving sentences for activities that are either legal or subject to lesser penalties under the new measure would be eligible to be resentenced. Plus, those who have already done their time could apply to have their convictions removed from their records.
In states such as Colorado, however, where recreational marijuana is legal, there are still actions involving weed that are criminal. And in those cases, people of color are still being arrested and jailed at higher rates than whites.
According to a March 2016 report (pdf) by the Colorado Department of Public Safety, the total number of marijuana arrests decreased by 46 percent between 2012 and 2014. Marijuana-possession arrests, which make up the majority of all marijuana arrests, were nearly cut in half. But the drop in the number of marijuana arrests was greatest for whites, at 51 percent; for African Americans it was 25 percent. However, the marijuana-arrest rate for African Americans was almost triple that of whites in 2014.
The total number of juvenile marijuana arrests increased 5 percent in those same years. But while the number of white juvenile arrests dropped 8 percent, it increased 29 percent for Hispanic juveniles and increased 58 percent for young African Americans.
Similar racial disparities existed in 2014 in Seattle, two years after Washington state legalized marijuana. A City Council report that year found that of 82 public-consumption tickets written by police in the first half of the year, 37 percent went to blacks, who make up 8 percent of the city’s population, and 50 percent went to whites, who make up 70 percent of the population.
Denver-based attorney Christian Sederberg, who works for the so-called Marijuana Law Firm, which helped write Amendment 64, calls the numbers troubling.
“In Denver we’re seeing a much higher rate of citations for people of color than for white people,” Sederberg says. “It’s shining a bright light on the way policing goes. There are more cops in poor areas focusing on other crimes, and this results in what I believe is a higher citation rate. … It’s very obvious that it’s happening, and it’s an issue they really have to address.”
But the politics surrounding whether nonviolent marijuana users should be pardoned or allowed to have their records expunged completely are complicated. In Colorado, Andrew Freeman says, people can apply to have their felony conviction for a marijuana offense that is no longer illegal under Amendment 64 changed to a misdemeanor. But that stays on your record.
Freedman notes that few of the people still in prison in Colorado for marijuana are there only for a single, nonviolent offense, which would make it easy for them to be released. According to a 2014 report (pdf) by the state’s Department of Corrections, there are only 71 nonviolent marijuana offenders among Colorado’s 20,300 inmates.
“In talking to those in the judiciary system, I think it would be pretty unlikely for people to be in jail for only marijuana crimes that are decriminalized. They would have to be in jail for a marijuana crime that would be illegal under Amendment 64,“ Freedman says.
Sederberg says that the reasons advocates haven’t moved to pardon all nonviolent marijuana offenders are complicated, particularly in a state where every single politician was against legalization.
“It was very much a ‘We don’t want [legalization], but it will be good government and implement it.’ It’s not even just the pardoning. They have issues with marijuana consumers. What if someone gives some to their kids? Social services gets called. Meantime, those same people are having a cocktail with their kids sitting next to them,” Sederberg says. “But it’s our opinion that everyone in jail for a nonviolent offense is a political prisoner. … The tricky part is the less sexy work, the cleanup after legalization.”
Tom Angell at the Brooklyn, N.Y.-based Marijuana Majority breaks it down even further, saying that the pardoning of nonviolent marijuana offenders has been part of a general debate among advocates about what is the best, most comprehensive marijuana-reform proposal that can be put on the ballot and garner the support of voters.
“I think there’s some question as to whether a sufficient number of voters would be skittish about the notion of releasing people from prison en masse,” Angell says. “In an ideal world, we want to release all the marijuana offenders yesterday! We absolutely do. But this is politics and reality, and you can’t let the perfect become the enemy of the good. We need to achieve what is achievable today and build on those victories and keep getting wins on the scoreboard.”
Allison Keyes is an award-winning correspondent, host and author. She can be heard on CBS Radio News, among other outlets. Keyes, a former national desk reporter for NPR, has written extensively on race, culture, politics and the arts. Follow her on Twitter.