When Maryland voters overwhelmingly chose to legalize recreational marijuana last November, we hoped this might help put an end to the five-decades-long declaration of a war on drugs. Any breathing person now knows the so-called war targeted Black people and the poor. We’re keenly aware of this, having spent the bulk of our legal careers in and out of crowded courts, jails and swelling prisons.
More black males could be found under some arm of the criminal justice system than could be found in any other institution, university or corporation in this state. The legal and societal justification for landing them there was found in the use and sale of illegal drugs. In far too many cases, the product of choice was marijuana — otherwise known by the now more socially acceptable name cannabis.
A plethora of reliable studies have informed, for decades, that Black and white people use marijuana at the same rates, but Black people are disproportionately arrested for it. Since Maryland decriminalized small amounts for possession in 2014, Black people continue to be arrested more often for possession with intent to distribute. From 2015 to 2017, 96% of arrestees for marijuana in Baltimore were Black. That is an overwhelmingly large number when considering that city is 62% Black.
Having watched the debate about the current marijuana reform legislation (S.B. 516) on the Maryland Senate floor, it appears that lawmakers once again have misplaced priorities. The legislation prioritizes how the state will regulate and tax an industry that restricts licenses to its elite and millionaires, thereby enabling them to legally become high-volume drug kingpins.
The legislation, which benefits some, does not end criminalization for others. Individuals who continue to distribute so-called illicit marijuana sold outside of government-taxed state monopolies are conspicuously omitted from the state’s brand-new industry. Under the proposed bill, the 1% get richer, and Black people will continue to go to jail for the same activity.
Sen. Jill P. Carter offered an amendment to fix this. But it was rejected by the body. This begs the question: Who is the legalization for? It is solely for the rich, elite and connected? I’m sure some of our legislators would disagree with that approach.
The amendment would have given individuals who may have sold marijuana illegally an opportunity to shift from illegal sales to legally finding a niche in which to participate in the cannabis industry. If Maryland is to create even a modicum of racial equity and economic equality, it must create a pathway to legitimacy for those who fall into generational cycles where the marijuana trade was one of the few options that provided a means to survive.
Three smart things Maryland should do now:
- Place a moratorium on marijuana arrests and grant all would-be arrestees an opportunity to get cannabis industry education and go legit.
- Divert this population away from the criminal system and into the legal Cannabis industry.
- Immediately ban law enforcement stops and searches based on the odor of marijuana.
One cannot tell solely by the odor of cannabis whether an amount believed to be present crosses the legal possession threshold into criminal activity. Moreover, moving to divert folks from the black market to the green market is truly the only way Maryland can begin to reverse harm to Black people because of the misguided war on drugs.
Such an approach would expand the tax base and increase revenues for the state while helping to quell the underground markets and improve public safety. Violence and illegal drug enterprises are inextricably intertwined. Without this kind of diversion, nothing will change and Maryland will, once again, leave black people behind.
J. Wyndal Gordon and Warren A. Brown are attorneys who practice criminal and civil law in Baltimore and throughout Maryland.
