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As Marijuana Becomes Legal, The Legacy of Structural Racism Still Haunts Many

In this essay, Beverly Yuen Thompson describes the structural racism created by the War on Drugs era and shows how the racial inequality it created may continue to disproportionately oppress people of color in the emerging legal marijuana economy.

While the 2016 U.S. presidential election will be remembered by history for the shocking election of Donald Trump for president, it should also be remembered for the 8 states that voted to legalize marijuana for adult and medical use. Continuing the trajectory established by the previous two elections, marijuana legalization increased its momentum by passing eight of the nine initiatives put forth. Medical marijuana became legal in Montana, North Dakota, Arkansas, and Florida, bringing the national total to twenty-eight states (plus Washington D.C.). Four states legalized marijuana for adult-use: California, Nevada, Massachusetts, and Maine, doubling the total to eight states nationally. Only one state rejected an adult-use legalization measure: Arizona. However, after this election multiple questions surrounding legalization remain. For instance, what will be done for individuals previously convicted or currently imprisoned on marijuana charges. Furthermore, how will our legal system treat felons seeking employment in this now legal industry?

The New Jim Crow and Structural Racism

“After 40 years of impoverished black men getting prison time for selling weed, white men are planning to get rich doing the same things. So, that’s why I think we have to start talking about reparations for the war on drugs. How do we repair the harms caused?”

–Michelle Alexander (2014)

Jim Crow laws enforced continued segregation of African Americans from white Americans in places such as public schools, restaurants, hotels, and rest rooms, after the Reconstruction period, and lasted until they were challenged in the mid–1960s by the Civil Rights Movement. Michelle Alexander points out in her book The New Jim Crow, that the drug war has been overwhelmingly oriented towards disenfranchising Black Americans convicted of possessing narcotics.

Jim Crow laws and the “War on Drugs” demonstrate how structural racism is enacted. While we may think of racism as an individual’s biased perception of other people, structural racism demonstrates that institutions themselves can uphold racism, such as segregated public places or discrimination against those seeking home mortgages. A modern example of structural racism can be found in the “good moral character” clause that bars many people of color from the legal marijuana industry.

Legally Allowed Marijuana Amounts and Restrictions

While the public may have the impression that marijuana in legalized states is a free-for-all, serious restrictions on amounts and consumption exist, and can still result in a hefty civil fine or even imprisonment. Most states restrict the amount of marijuana purchased by an individual to one ounce. Washington D.C. and Maine allow for the possession of up to two ounces of marijuana, and six plants in the home. Washington is the only adult-use state that does not allow for residential plants; the punishment for which is a felony, five years in prison and a $10,000 fine.

Many punishments for marijuana violations remain. It remains illegal to consume cannabis in public. It also cannot be consumed in a dispensary, while driving, and in locations that ban (cigarette) smoking, such as bars and hotels. The only location one can lawfully consume cannabis is in one’s residence. Parental rights continue to be threatened. States with legal marijuana may ban consumption with a child present, or define impairment of one’s ability to care for children present, to be terms for child removal from the home. Only Maine’s law proactively included a clause that parental rights and responsibilities or contact with a minor child cannot be denied because of marijuana consumption. Driving under the influence for medical patients and adult-users is banned. Washington State has the lowest threshold for DUI laws for cannabis consumption, which is 5.00 nanograms. Yet, a test for current cannabis impairment does not exist. State bans on tobacco smoking apply to cannabis, therefore, a cannabis smoking lounge would only be possible in a private venue. So far, only Alaska and Maine’s laws have included smoking lounges, which are banned in all other states.

The “Good Moral Characters” Clause

In legal marijuana states, their laws often include a “good moral character” clause, requiring prospective owners and employees, to submit to a criminal background check. Marijuana legalization laws often ban workers with drug convictions from working in the industry, especially medical marijuana states. Oregon, Washington and Colorado makes exception for those with a prior conviction of the manufacture or possession of marijuana, on convictions older than five or ten years, if they have no more than one conviction. Under California’s Proposition 64, licensees cannot have a serious or violent felony conviction; simple marijuana convictions are excused. Nevada and Maine bar certain felony offenses, but overlooks those over 10 years. Massachusetts bars felons, but makes exception for marijuana offenses.

Previous Convictions & The Legal Marijuana Economy

The ACLU (2013) recently published a report called The War on Marijuana in Black and White, where the overviewed the differences in arrest rates for blacks and whites in all counties and states in the country. Overall, African Americans were arrested for Marijuana offenses at a rate of 3.73 times higher than white Americans. In some areas of the country, this racial disparity was as high as fifteen times as larger for African Americans compared to their white counterparts.

In states with a “good moral character” clause these prior convictions disproportionately prevent people of color from joining the newly legal marijuana economy. Only Oregon and California have included in their law the eligibility of individuals with previous marijuana convictions, to have their convictions set aside, sentences reduced, or records sealed. This process is far from automatic and requires an individual to hire a lawyer and go through the potentially lengthy and costly process of applying for such easement on their criminal record. Colorado only allowed an exemption for those whose cases were pending as the law was in transition. Some states had previously decriminalized marijuana charges, thus reducing further arrests, imprisonment, and fines. During the midterm election of 2014, California passed Measure 47, which automatically and retroactively downgraded many nonviolent drug related felonies to misdemeanors, resulting in ten thousand prisoners being eligible for immediate release. The D.C. Council decriminalized possession to a $25 fine, and then eased laws to seal marijuana convictions. However, in the states of Alaska, Washington, Nevada, Massachusetts, and Maine, the new legalization measure did not include a new statute regarding previous convictions.


The War on Drugs was instrumental in creating and reinforcing structural racism in the United States. As states continue to legalize marijuana, it is imperative that we apply retroactive relief to those who have only done what is now allowed under the new law. Furthermore, we must ensure that the racial inequality created by the War on Drugs is not allowed to prevent people of color from participating in the emerging marijuana economy.

Dig Deeper:

  1. Do you think marijuana should be legalized nationally? Explain your answer.
  2. If marijuana was legalized in all 50 states tomorrow, what do you think should be done about people who are in prison on marijuana related offenses? Explain your answer.
  3. Would you support either doing away with the “good moral characters” clause or amending it so that people convicted of crimes that are not illegal today would still be able to own a marijuana related business? Explain your thoughts.
  4. Look at the ALCU report The War on Marijuana in Black and White. What percentage of white and Black 18 to 25 year-olds reported using marijuana in the previous year? How does this statistic compare to the rate of arrest for marijuana possession among whites and Blacks?


  • Alexander, Michelle. 2012. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
  • American Civil Liberties Union. 2013. The War on Marijuana in Black and White. New York: ACLU.

Image provided by the author.