Implementing Social Justice in The Transition From Illicit To Legal Cannabis
Implementing Social Justice in The Transition From Illicit To Legal Cannabis
To cite this article: Bryon Adinoff & Amanda Reiman (2019): Implementing social justice in the
transition from illicit to legal cannabis, The American Journal of Drug and Alcohol Abuse, DOI:
10.1080/00952990.2019.1674862
REVIEW
Introduction of both South Africa (17) and Mexico (18) ruled that
cannabis prohibition was unconstitutional, in effect legaliz-
The repeal of laws prohibiting the production and sale for
ing the personal use of cannabis; existing legislation in
the non-medical use, or “adult/recreational use,” of canna-
Spain is generally interpreted to allow personal cultivation
bis is being undertaken in a number of countries. In 2012,
in the home (19). Polls show that support for cannabis
the United States (U.S.) states of Colorado and Washington
legalization for adult use has progressively increased in the
were the first jurisdictions in the world to legalize the
U.S. since 1990; a substantial majority (on both sides of the
production, distribution, sale, and use of cannabis. Since
political aisle) now support its legalization (20). U.S. and
that time (as of July 2019), an additional ten states and the
Canadian industries have invested billions of dollars into
District of Columbia (D.C.) representing 20% of the
the cannabis trade (quadrupling from 2017 to 2018) (21)
U.S. population have legalized the adult use of cannabis
and cannabis-derived tax revenues are perceived to be of
(all but two through a ballot initiative) (1,2) (Table 1). Two
significant benefit to government budgets (22). The con-
U.S. territories (Northern Mariana Islands and Guam)
tinued legalization of adult-use cannabis in additional
have also legalized adult use cannabis. Uruguay legalized
U.S. states as well as other countries is likely.
cannabis for personal use in 1974 and for cultivation and
Frequently lost in these discussions are commonly cited
sale in 2013 (15) and Canada legalized cannabis in 2018
rationales that have historically driven cannabis legalization
(16); in 2009 Argentina’s top court determined that it was
—that the individual, family, community, societal, and
unconstitutional to punish individuals for the possession of
economic costs of cannabis prohibition far outweighed
drugs for personal consumption (3); in 2018 the top courts
the potential downsides of cannabis legalization (23–25).
CONTACT Bryon Adinoff [email protected] 1017 S Gaylord St., Denver, USA, 80209
Color versions of one or more of the figures in the article can be found online at www.tandfonline.com/IADA.
© 2019 Taylor & Francis Group, LLC
2 B. ADINOFF AND A. REIMAN
Table 1. Adult use cannabis legal U.S. states. who had experienced the greatest harmed (e.g.,
State Year Passed Ballot or Statute communities of color) by cannabis prohibition
Alaska 2014 Ballot, Measure 2 (4) (41,43,46,47) and that taxes generated from the
California 2016 Ballot, Prop64 (5)
Colorado 2012 Ballot, Amendment 64 (6) cannabis trade could be used to help rebuild com-
a
D.C. 2014 Ballot, Initiative 71 (7) munities disproportionately harmed by cannabis
Illinoisb 2019 Legislative, HB 1438 (8)
Maine 2016/2018 Ballot, Question 1/Legislative – LD 1719 (9) prohibition (48). This paper explores how success-
Massachusetts 2016/2018 Ballot, Question 4/Legislative – H3818 (10) fully the cannabis legalization laws have addressed
Michigan 2018 Ballot, Proposal 1 (11)
Nevada 2016 Ballot, Question 2 (12) these inequities. Thus, while the legalization of can-
Oregon 2014 Ballot, Measure 91 (13) nabis has allowed adults to use and, in most can-
Vermonta 2018 Legislative, H. 511 (13)
Washington b
2012 Ballot, I-502 (14) nabis-legal states, grow cannabis without risk of
a
supply prohibition (personal cultivation/possession/use only) arrest (Table 1), generated sizable tax revenue, and
b
personal cultivation not permitted
offered the promise of significant wealth to many
individuals and industries, there has been relatively
A key concern of cannabis prohibition—particularly in the little consideration as to whether or not cannabis
U.S.—was that the burden of these costs was born by legalization has adequately responded to the social
disadvantaged minority populations, particularly Black justice concerns that helped precipitate this sea
and Hispanic individuals and communities (26–29). change in drug laws.
Between 2001 and 2010, for example, there were over This paper will also review progress in addressing
eight million arrests in the U.S. for cannabis, almost 90% the past injustices caused by cannabis prohibition,
of which were for possession. [Data extracted (30) from FBI with the caveat that cannabis legalization only
data bases (31)]. This trend has continued, with over began seven years ago, has taken place in only
650,000 arrests for cannabis law violations in 2017 in the a few geographic entities, and relevant data is scarce.
U.S (32). Despite similar rates of use in the U.S., arrest rates Although the term “social justice,” by definition,
of Black individuals were almost four times that of Whites; could include the distribution of wealth, opportu-
in some counties, Blacks individuals were up to 30 times nities, and privileges, environmental protection as
more likely to be arrested than white residents (30). In well as personal or public safety, our paper will
London, Black individuals are charged with cannabis pos- focus on aspects of social justice most relevant to
session at five times the rate of Whites (33); Indigenous and the past harms of cannabis prohibition (i.e. personal
Black persons in Canada suffer three to nine times arrest and societal costs of cannabis-related arrests and
rates for cannabis possession compared to Whites despite convictions). In entities where adult-use cannabis
similar rates of use (34,35). In several U.S. states, the con- has been legalized, we will examine 1) if cannabis-
sequences remain quite severe. In Texas, for instance, an legal states have enacted procedures to remove the
arrest for even minimal amounts of cannabis can result in harms of prior cannabis convictions, 2) if arrests and
180 days in jail, a $2000 fine (Texas Statutes Sec.481.121), convictions for cannabis-related related offenses have
and six months loss of driver’s license (36). The arrest also decreased and whether the severity of penalties for
requires bail to obtain release from jail and potentially illicit activities risk perpetuation of prior injustices, 3)
negative consequences for child custody and employment whether systems have been implemented to assure
opportunities. Even short periods of incarceration to the minority access to the legal cannabis industry 4)
economically disadvantaged may cause severe hardships; whether tax revenues generated from legal cannabis
a few days of missed work may lead to job termination. The have been earmarked to fund equity and/or restora-
consequences of a cannabis-related arrest or conviction tive justice programs for those communities most
may persist a lifetime, affecting one’s ability to obtain affected by prohibition, and 5) whether cannabis
employment, a car loan or mortgage, student financial aid prohibition poses particular risks to the populations
(37), or public housing (38). that bore the brunt of cannabis prohibition. These
For several decades, policy analysts (39,40), advo- discussions will be followed by recommendations for
cacy groups (41,42), medical organizations (43), and future initiatives to maintain a social justice perspec-
legislative reports (44,45) have proposed that the tive on cannabis legalization.
legalization of cannabis would significantly lessen Citations in this review were drawn from a wide
arrests and incarcerations for cannabis-related variety of sources. Given the limited time frame of
offenses. Particularly in the U.S., it was also hoped adult-use cannabis legalization, jurisdictional variability
that cannabis legalization would most benefit those in cannabis laws, a relative absence of government
THE AMERICAN JOURNAL OF DRUG AND ALCOHOL ABUSE 3
funding for the assessment of social injustice, and (e.g., if you break the law and are convicted in
a rapidly changing political and legal landscape, peer- a court of law, you should suffer the consequences)
reviewed manuscripts are in short supply. Thus, we and the process can be expensive and time-
leaned heavily upon the gray literature (government consuming. Three cannabis-legal states have not con-
documents and white papers) and, when appropriate, sidered accommodations for expungement. When
lay publications. Because of significant transformations offered, expungement is almost always limited to con-
occurring in real time, we have attempted to have our victions for possession only (less than one or two
review current as of June 2019. Given the presence of ounces), often requires that no other criminal convic-
cannabis-legal jurisdictions in the U.S. for several years tions be on record, and may require a waiting period
and the resultant availability of outcome data, the com- (e.g., three years) following conviction before expun-
plexity and variability of U.S. state differences regard- gement can be requested.
ing social justice, and the significantly greater attention Typically, expungement occurs through a petition
and analysis given to social justice issues in the U.S. process initiated by the individual with the criminal
[primarily from advocacy groups (28,41)] relative to record. The petition process, however, can be cumber-
other cannabis-legal jurisdictions, the paper has some, time-consuming, and expensive. Even upon suc-
a U.S. centric-focus. cessful completion of the petition, it may be denied.
Because of these barriers, few petitions have been sub-
mitted. Of 78,000 cannabis-related convictions that
Expungement of prior cannabis-related arrests
could be set aside in Oregon, for example, only several
and convictions
hundred requests for set-asides were received in 2015
One of the key goals of cannabis legalization was to and 2016 (53). And whereas nearly half a million peo-
remove the unnecessary and harmful consequences of ple were arrested for cannabis-related offenses over the
cannabis-related infractions. Even with cannabis legali- past decade in California, less than 5200 applications
zation, however, the consequences of a previous arrest were received (thru March 2018) to reclassify these
and/or conviction for a cannabis-related offense per- offenses (54).
sists. Thus, expungement of previous records is The racial/ethnic distribution of those applying for
a necessary accompaniment to cannabis legalization. and/or receiving expungement has not, to our knowl-
The International Covenant on Civil and Political edge, been reported. It seems likely that those applying
Rights (ICCPR) (49), a multilateral treaty adopted by for expungement are of more substantial means (e.g.,
the United Nations General Assembly, states that when available time, skill at navigating administrative
a change of law will benefit a previously arrested or requirements, resources to hire a lawyer to guide the
convicted offender, then the new law should be retro- process and/or pay the required fees), thus lessening
actively applied (50). The principle of retroactive appli- the likelihood disenfranchised individuals would peti-
cation of a beneficial or ameliorative law is referred to tion for expungement. Given the racial bias of the
as lex mitior, or the mercy doctrine, where laws are U.S. criminal-justice system, Blacks and Hispanics
applied in mitius (“mildly”). (This is a corollary of ex would also be at increased risk of having additional
post facto laws, which prohibit the retroactive applica- convictions, often making them ineligible for expunge-
tion of new, harsher laws that become operative after ment. Offering expungements to only those convicted
a crime has occurred). Thus, the principle of lex mitior of possessing small amounts of cannabis further con-
recommends that entities that legalize cannabis should tinues the racial inequities, as the majority of felony
remove cannabis-related convictions that occurred convictions for cannabis-related offenses were suffered
under previous laws. by minority populations. [In 2014 in California, for
In the U.S., expungement (a court-ordered process instance, Black people accounted for 24% of those
in which the legal record of an arrest or a criminal incarcerated for cannabis-only offenses despite making
conviction is “sealed,” or erased in the eyes of the up 6% of the state’s population (55).] Finally, the added
law) of previous cannabis convictions is often contingencies greatly diminish the impact of expunge-
included in initial ballot initiatives or legislation for ment. In 2018, Washington state offered an easy path
cannabis legalization [Table 2 (1,52)]. Other states for expungement of previous state (not local) cannabis
have approached expungement only subsequent to possession convictions, provided the applicant had only
cannabis legalization (possibly to minimize voter a single misdemeanor conviction for adult cannabis
resistance to legalization). This is often a matter of possession between 1998 and 2012 and no other con-
expediency, as the forgiveness of previous drug- victions, ever. Of the convictions that followed from an
related offenses can strike many voters as unfair estimated quarter million cannabis-related arrests in
4
Table 2. U.S. states approval of expungement/sealing of previous cannabis convictions. In cannabis legal states, expungement was approved with initial ballot initiation/legislation unless
otherwise noted. Individuals must petition for expungement unless otherwise noted (i.e. California, Illinois).
B. ADINOFF AND A. REIMAN
Washington during that time period, only 3,500 were rulings, in and of themselves, would not automatically
eligible for expungement (56). A year later, however, reverse previous sentences.
a far more comprehensive expungement bill was Recommendations: Following the principles of lex
passed, inclusive of all state and municipal cannabis mitior,
misdemeanor convictions (56). ● Expungement or downgrading (from felonies to
In 2018, California hastened the expungement of misdemeanors) for all cannabis-related offenses
cannabis-related offenses. The Cannabis Convictions: that occurred prior to the approval of cannabis
Resentencing bill (57) required the California legalization should be included in any bill or ballot
Department of Justice to review all state records and initiative legalizing cannabis. When necessary,
identify past convictions eligible for recall, dismissal, these initiatives can be passed following cannabis
sealing, or re-designation. Prosecutors had up to a year legalization or even in the absence of legalization.
to vacate the conviction or to reduce it from felony to ● Expungement should be provided automatically
misdemeanor. Unless challenged, the conviction was to (unless challenged by the prosecutor), without
be automatically reduced or dismissed. This approach the need for a petition. Resources should be pro-
put the onus of expungement on the state and allowed vided to prosecutors to implement expungement/
(presumably) for the reduction or dismissal of hun- downgrading. If a petition is required, the process
dreds of thousands of past convictions. Some cities should be free-of-charge and simplified as much
outside of California have implemented a similar sys- as possible.
tem, but it remains atypical. To date, Illinois is the only ● Previous or subsequent arrests/convictions for
state that has included automatic expungement for non-cannabis-related charges and waiting periods
previous convictions [of up to 30 grams (1 ounce)] in following an arrest or conviction for a cannabis-
their initial cannabis bill (HB1438, 2019). Yet caution is related offense should not impede the granting of
advised: the president of the Illinois State Attorneys expungements/downgrading.
Association has reportedly stated the “legislative par- ● When petitions are required, the number of
dons” may violate the state’s constitution (58). expunged/downgraded convictions and their
New York state has also passed legislation (A. 2142 racial distribution should be monitored and
and S. 3809) automatically sealing low-level cannabis reported.
possession convictions for over 150,000 persons,
although individuals must petition the courts for their
records to be destroyed. Interestingly, cannabis posses-
Cannabis-related offenses in a cannabis legal
sion in New York remains illegal (albeit subject only to
environment
a fine for less than 2 ounces).
In 2019, Bill C-93 (“An Act to provide no-cost, The term “legalized cannabis” is commonly used to
expedited record suspensions for simple possession of describe an environment where cannabis can be legally
cannabis”) received royal assent and became law in cultivated, sold, possessed and used without legal con-
Canada. This act allows individuals convicted of simple sequence. In fact, there are extensive regulations that
cannabis possession, estimated to be approximately guide each of these activities, as there are for the culti-
250,000 persons, to apply for a suspension (but not vation, distribution, and sale of lettuce. This produces
expungement) of their conviction. Individuals must a difficult conundrum, in that support for the legalized
wait until after serving their sentence and paying their cannabis market requires an effort by the authorities to
fines and victim surcharges (59). prohibit the illicit market. Cannabis-related crimes
The situation in other countries is more difficult to such as robbing a dispensary, tapping into electric
assess. In 1974, Uruguay legalized the possession and lines, and causing environmental damage for cultiva-
use of all drugs (15). Thus, there were no cannabis tion (61) should clearly be dealt with under laws not
possession convictions to expunge. Uruguay’s legaliza- associated with the cannabis trade. But infractions such
tion of cannabis cultivation and sale in 2013 did not as cultivating or selling cannabis without a license are
offer expungement of previous cultivation/sale convic- more complicated; it remains important that cannabis-
tions (60) and, to our knowledge, this process is not related transgressions do not result in a continuation of
being considered. Similar uncertainties exist for the the harsh penalties and racial inequities incurred dur-
status of previous cannabis-related convictions in ing cannabis prohibition.
Mexico and South Africa, where courts have ruled While arrests for cannabis violations have dramati-
that cannabis prohibition is unconstitutional. These cally decreased in states with legal cannabis, most
6 B. ADINOFF AND A. REIMAN
Figure 1. Annual cannabis arrests by state in cannabis legal states, prior to and following legalization [(62), with permission from
Drug Policy Alliance].
arrests are for underage use and public consumption. legal states is illegal in all public spaces, although
Over just two or three years, arrest rates in Alaska, Colorado recently approved cannabis consumption
Washington, D.C., and Oregon fell by 90% (and up to areas (2019, HB1230). Public consumption is
as much as 99%) (62) (Figure 1). In Colorado, decreases a misdemeanor in Nevada but a civil penalty in all
in arrest rates were more modest, partly due to low other states (52,66). In Canada, limitations on public
rates prior to legalization and partly due to increases in consumption may include all public spaces, around
arrests for public consumption. Despite marked children, or in cars or permitted anywhere tobacco is
decreases in arrest rates of all races/ethnicities, contin- allowed or in private residences only, depending on the
ued disparities in arrest rates persisted—with Blacks province (67). Fines for public consumption can be as
and Hispanics being arrested at rates at least double high as $2000 (in Nova Scotia) (68). In Uruguay, can-
those of Whites (62–65). In Washington, DC, for nabis can be consumed wherever tobacco is consumed
instance, arrests for public consumption almost (60). Penalties for underage use (below 21 y/o in the
doubled between 2014 and 2018, the vast majority U.S., below 18 or 19 y/o in Canada, and 18 y/o in
being Black men. In Washington state, an 87% decrease Uruguay) appear, to our view, appropriate. Typical
in cannabis possession arrests (for those ≥21 years old) penalties require attendance at drug awareness educa-
from 2012 (onset of legalization) to 2015 was accom- tion, counseling, or community service. More signifi-
panied by an increase in the relative disparities between cant penalties may include significant fines and/or loss
Black and White 2.5 to 5 (65); in Colorado (2012–- of driver’s license. Perhaps the most problematic pen-
2017), arrests of Blacks for cannabis violations alty is the potential loss of U.S. federal financial aid for
remained double those of Whites (63). Thus, while college, since this is driven by federal law (37).
cannabis legalization successfully lessened the numbers Adult-use cannabis statutes have typically not
of minorities arrested for cannabis-related offenses, it addressed penalties for cannabis use/cultivation/sale/
appears that underlying racial biases persist. distribution falling outside of the adult-use statues
Penalties for public consumption are relatively leni- [with the exception of California and Canada (67)].
ent (Table 2). In the U.S., consumption in cannabis Thus, the prior laws for offenses (e.g., illicit cannabis
THE AMERICAN JOURNAL OF DRUG AND ALCOHOL ABUSE 7
cultivation) not included in the cannabis-legal statutes Of particular concern is the racial distribution of
have remained intact or been revised in distinct sta- more severe penalties, both in terms of numbers
tutes. In the U.S. and Canada, the possession/sale/dis- of convictions and sentence severity.
tribution/cultivation of relatively small amounts of ● In the U.S., jurisdictions in cannabis use legal
cannabis over the legal limit typically result in misde- states that continue supply prohibition should
meanors with small fines and less than a year of incar- reconsider this stance.
ceration [Table 3 (52,66,69)]. In contrast, penalties for
larger amounts can be extremely harsh; e.g. sale/distri-
bution in Colorado of >50 pounds (lbs) is punishable
Transitioning to a legal cannabis business
by up to 32 years in prison and $1,000,000 fine; in
environment
Michigan, >45 kilograms (kg) is punishable by up to
15 years and $10,000,000 fine; in Nevada, ≥10,000 lbs In the U.S., participating in the regulated market
up to life in prison; and in Canada, large amounts up to requires obtaining a license from the appropriate state
14 yrs. An exception is California, where penalties for agency for the cultivation, distribution and/or sale of
cultivation/sale/distribution of even large quantities of cannabis, which may require local approval as well
cannabis is a misdemeanor. However, the penalties for (71,72). In most states, previous cannabis-related con-
the sale/distribution to minors is universally severe. victions (as well as other criminal records) disqualify an
Significant risks of cannabis-related arrests persist in applicant from obtaining a license or even being an
jurisdictions that have legalized the personal use of employee in the cannabis industry (73). For instance,
cannabis but do not allow a legal means for the com- in Colorado, an applicant for a cannabis business
mercial cultivation, distribution or sale [i.e. “supply license cannot have a felony conviction within the pre-
prohibition” (70)]. This is the present situation in vious five years; if the felony is cannabis related, the
Washington D.C., Vermont, South Africa, and applicant must wait ten years (74). Next, a licensing fee
Mexico. Similar risks are likely even in some must be paid to the state and sometimes the city/
U.S. states that have legalized the commercial cultiva- county. The license fees can be significant; in
tion/sale/distribution of cannabis, as the majority of California, for example, license fees for a retailer
jurisdictions (e.g. counties, cities) have not allowed range from $10,000 for a small business (less than
the licensing of grows or dispensaries, thus increasing $1,000,000 gross revenue) to $300,000 for a large
the risk of illicit activity. For example, 250 Michigan microbusiness (over $80,000,000 gross revenue) (75).
communities have banned cannabis businesses (71); in More problematic is meeting the state regulatory
California, only one in three cities (144 of 482) and requirements for security, monitoring, testing, etc.,
counties (18 of 58) permit cannabis businesses (72). that may cost upwards of several hundred thousand
The laws in these supply prohibition jurisdictions dollars (76,77). Local regulations can add an additional
offer protection to the user but not for the person burden. In Canada, licenses to private firms for the
who provides the product (typically more marginalized cultivation of cannabis are provided at the federal
populations). level (78). Fees for application, security, and license
Recommendations: vary from approximately $5500 (Canadian) for micro-
● Penalties for public consumption, smaller processing/cultivation to approximately $28,000 for
amounts of cannabis, and underage use in canna- standard cultivation and sale (79). Individuals who
bis legal locales generally appear appropriate to have histories of nonviolent, lower-risk criminal activ-
the offense. It will be important to track whether ity (such as simple possession or small-scale cultivation
the drug education, counseling, community ser- of cannabis plants) may be able to participate in the
vice, and/or fines affect subsequent re-arrests for legal industry, depending on the circumstances (80).
underage use. Localities that legalize cannabis Given the historical and present difficulties minorities
should be mindful of the impact that even small have experienced in accessing capital (81), the signifi-
fines can have on disadvantaged communities as cantly lower wealth in minority populations (82), and
unpaid fines can result in a warrant or revocation racial bias in drug-related convictions that often exclude
of parole or probation. In the U.S., the conse- industry participation (83), it is presumed that minori-
quences of cannabis convictions on school loans ties have dramatically lowered opportunities for partici-
and public housing will need to be addressed at pation in the cannabis industry (83). However, empirical
the federal level. data documenting poor industry penetration into the
● Jurisdictions should continue to monitor the industry is lacking [a commonly cited survey did not
number of arrest/convictions and racial disparity. utilize statistically rigorous methods (84)]. To our
8
Table 3. Penalties for illicit public use, cultivation, sale, and distribution for cannabis-legal U.S. states and Canada (1). Penalties shown are maximum. Only first-time penalties for
smallest and largest amount of cannabis plant number or cannabis weight are shown. For sale to minors, penalty may differ on age of minor and age of seller. Mnths (months) and yrs
(years) refers to maximum incarceration penalty. y/o = years old; oz = ounce [one ounce = approximately 30 gm].
State Public Use Sale to underagea Possession above legal limit Illicit cultivation Illicit Sale or Distribution
B. ADINOFF AND A. REIMAN
Alaska Violation/$100 to <19 y/o: 1–4 oz: misdemeanor/ >25 plants: felony/5 yrs <1 oz: misdemeanor/1 yr; ≥1 oz felony, 5 yrs
felony/10 yrs one yr/$10,000a;
>4 oz: felony/5 yrs/$50,000
California $250 fine felony/7 yrs >1 oz: misdemeanor/ >6 plants: misdemeanor/6 mnths/$500 >1oz: misdemeanor/6 mnths/$500
6 mnths/$500
Colorado Petty offense/ to <18 y/o: felony/ 1–2 oz: petty offense/$100; 6–30 plants: 6 mnths-2 yrs/$100,000; >4oz: misdemeanor: 6-18 mnths/$5000; >50 lbs:
$100 14 yrs/$1,000,000 >12 oz: felony/1–2 yrs/$100,000 >30 plants: felony/2–6 yrs/$500,000 8-32 yrs/$1,000,000
D.C. cite and release doubled penalty >2 oz: misdemeanor/ <1/2 lb: 6 mnths/$1000 <1/2 lb: 6 mnths/$1000
6 mnts/$1000
Illinois Not known twice the 30–500 gm: felony/6 yrs/$25,000: 5–20plants: felony, 6 yrs/$25,000; >200 plants: <10 gm: misdemeanor:1 yr/6 months/$2500;
maximum term >5000 gm: felony/30 yrs/$25,000 felony, 30 yrs/$100,000 >5000 gm: felony: 60 yrs/$200,000
Maine civil infraction: 5 yrs/$5000 2.5–8oz: 6 mnths/$1000; >20lbs: 10 yrs/$20,000 3–100 plants: 1 yr/$2000; ≥500 plants: 10 yrs/ ≤1lb: 1 yr/$2000; >20lbs: 10 yrs/$20,000
$100 $20,000
Massachusetts civil fine of up to 2–15 yrs/ >1 oz: 6 mnths/$500a <50lbs:0–2 yrs/$5000; <50lbs: 0-2 yrs/$5000;
$100. $25,000 ≥10,000lbs: ≥10,000lbs:
felony/15 yrs/$100,000 felony/5-15 yrs/$100,000
Michigan $100 fine felony/4 yrs >2.5oz: $500a 12–24plants: civil infraction/$500; >200 plants: <5 kg: felony/4 yrs/$20,000;
felony/15 yrs/$10,000,000 >45 kg:
felony/15 yrs/$10,000,000
Nevada misdemeanor: felony/5 yrs-life >1oz: misdemeanor/$600b >12 plants:felony/1–4 yrs/$5000b; >10,000lbs: >1 oz <100lbs: felony/1–4 yrs/$5000b; ≥10,000
$600 /$20,000 felony/5 yrs-life;$200,000b lbs: 5-life/$200,000b
Oregon misdemeanor: felony/5 yrs/ 1–2 oz: violation/$650; >4 oz: misdemeanor/1 yr/$6520s; 4–8 plants: misdemeanor: 6 mnths/$2500; >8 ≥16 oz: misdemeanor/1 yr/$6250
$1000 $125,000 at home: 1–2 lbs: misdemeanor/6 mnths/$2500; >2lbs: plants: felony/5 yrs/$125,000
misdemeanor: 1 yr/$6520
Vermont civil penalty: felony/5 yrs/ 1–2 oz: misdemeanor/6 months/$500; ≥10lbs: felony/15 6–10 plants: felony/3 yrs/$10,000; <0.5oz: misdemeanor/2 yrs/$10,000;>50lbs:
$100 $25,000 yrs/$500,000 >25plants: felony/15 years/$500,000 felony/30 yrs/$1,000,000
Washington civil penalty: felony/ 1 oz-40 g: misdemeanor: any amount: felony/5 yrs/$10,000 any amount: felony/5 yrs/$10,000
$100 10 yr/$10,000 24 hrs-90 days/$10,000/>40 g: felony/5 yrs/$10,000
Canada varies by 14 yrs small amountc: ticket; small amount: tickets; small amount: tickets; large amount: 14 yrs
provinceb large amount: 5 yrs large amount: 14 yrs
a
typically refers to minor (under 18 y/o).
b
e.g., Saskatchewan: $200 fine; Manitoba: $672 fine; Nova Scotia: $2000; Ontario: allowed wherever tobacco can be legally consumed.
c
”small amounts” in Canada is over legal limit of 30 gm dried cannabis (150 gm fresh cannabis, about 5 ounces).
THE AMERICAN JOURNAL OF DRUG AND ALCOHOL ABUSE 9
knowledge, only Massachusetts reports percent of mino- would be used to correct the injustices resulting from
rities in the cannabis industry. This report states that, as cannabis prohibition. While some states have moved in
of May 2019, 3.3% (14 of 421) of cannabis business this direction, the response has been limited (Table 4).
applications were from self-identified minorities (85) Given the widespread harms caused by cannabis
[Black/Hispanic persons make up 20% of prohibition and the overwhelming needs required to
Massachusetts’ population (86)]. begin a reparative process, approaches for improving
Difficulties in transitioning to a legal market can also equity have been quite varied. These diverse approaches
result from regulatory approaches. In Uruguay, for exam- are appropriate, given that each locale must respond to
ple, cannabis sales are only allowed thru government phar- their population’s needs and political expediency. To
macies or social cannabis clubs, only three commercial our knowledge, all efforts to support equity programs
businesses have been granted licenses to produce cannabis, have come from cannabis-related revenues.
and purchasers much register with the government (87); in The most targeted effort to address the harms from
Quebec, Canada, cannabis stores are government run (67). cannabis prohibition are in California, Massachusetts, and
These approaches limit the ability of those presently Illinois (62). California’s “Community Reinvestment
involved in illicit cannabis activities to transition to a legal Fund” [Cal. Rev. & Tax. Code § 34019(d)] is designed to
business model. In some U.S. states, cannabis taxes have not assist in the rebuilding of “communities disproportio-
equilibrated to maximize legal sales (i.e., cannabis taxes are nately affected by past federal and state drug policies”
higher than market forces will allow, given the availability of and requests applications from community programs to
illicit cannabis) [see “Goldilocks” Principle in (88)]. target jail diversion, economic development, and mental
Several U.S. cities (including Portland, Oregon and health treatment. This program is slated to grow to
Oakland, San Francisco, Sacramento, and Los Angeles $50 million per year. In Massachusetts, a share of tax
in California) and states have implemented processes to revenues in the Marijuana Regulation Fund [Mass. Gen.
encourage diversity, both for minority individuals and Laws Ann. ch. 94G § 14(b)(v)] is allocated to “program-
small businesses. In 2018 California enacted SB1294, allo- ming for restorative justice … services for economically
cating grant funding to assist minority-owned businesses disadvantaged persons in communities disproportio-
in the cannabis industry; in Washington, a drug convic- nately impacted by high rates of arrest and incarceration
tion is not necessarily a barrier to employment in the for marijuana offenses.” The funding for these reparative
industry; for those eligible for expungement of cannabis- efforts is uncertain, as this fund includes several other
related convictions, Illinois provides additional points for priorities and allocations are determined by the legisla-
cannabis business applicants and access to financial ture. Massachusetts has also adopted provisions to ensure
resources for start-up costs [(89), p. 11)]. that people from communities that have been cannabis
Recommendations: harmed by cannabis law enforcement are included in the
● Expungement of previous cannabis-related convic- legal marijuana industry (93). Illinois gives preference for
tions to allow those in the illicit trade to enter the cannabis licenses to those “disproportionately impacted
legal cannabis trade. Allow individuals with nonvio- by both poverty and cannabis drug law enforcement and
lent cannabis-related offenses to participate in the provide low-interest rate loans … job training and tech-
cannabis trade. nical assistance to these businesses”; the Restore, Reinvest,
● Encourage diversity in the cannabis industry using and Renew Program provides resources to support com-
regulatory systems to support minority-owned munity-based responses to communities impacted by the
cannabis businesses. drug war. In Canada, Koutouki and Lofts (94) observe that
● Utilize regulatory systems to encourage the transi- “provisions of the Cannabis Act effectively exclude
tion of small businesses to the licit cannabis trade. Indigenous communities from making key economic
● Monitor diversity of cannabis business owners and political decisions regarding cannabis on their own
and employees. territories,” concluding that, while “there is potential for
Indigenous communities to benefit from cannabis legali-
zation, [there is] also a very real risk that the new legal
framework will simply perpetuate existing injustices.”
Restorative justice for those harmed by
To our knowledge, no other U.S. states and no Canadian
cannabis prohibition
provinces have directly targeted programs providing
The personal and social costs of prohibition, particu- restorative justice to populations most harmed by cannabis
larly in the U.S., have been overwhelmingly experienced prohibition. From a political perspective, it is presumably
by persons of color (30). Accordingly, there has been far more palatable to recommend cannabis-generated tax
a state-by-state effort to use cannabis-related revenues revenues for educational and enforcement purposes.
10
Table 4. Social equity/diversity and prevention/education/treatment support in cannabis-related initiatives/legislation in U.S. States with cannabis legalization.
State Support for social equity/diversity Support for cannabis-related prevention/education/treatment
Alaska none specified 2018: funds allocated to drug prevention programs that engage young people in skill-building to
B. ADINOFF AND A. REIMAN
Not considered in these equity programs, however, prevalence of cannabis use and use disorders in adult
is the destination of monies previously used to support users following the implementation of medical cannabis
cannabis prohibition. Billions of dollars have been used (99), the negative consequences of cannabis in adults
to support an extensive police, court, and prison system may be expected to rise.
dedicated for this purpose (95). While this cost has Cannabis use can co-occur with psychotic, anxiety,
significantly decreased in states with long-standing major depressive, post-traumatic stress, major depres-
decriminalization, some states—as well as the federal sive and bipolar disorders (100–102), although a causal
government—continue to dedicate significant sums of relationship remains uncertain (102–105). While can-
money for cannabis prohibition. As cannabis legaliza- nabis has been reported to be helpful for some indivi-
tion becomes the norm, it is hoped that a shared sense duals with psychiatric disorders, substantial research
of social justice will serve to utilize these funds to suggests that, for those experiencing mental health
support communities targeted by the drug war. symptoms, many experience a progression of their psy-
Recommendations: chiatric symptoms [see review in (100)]. Cannabis use
● Jurisdictions should develop a plan to estimate the has also been associated with an increased risk of other
cost savings from the decrease in arrests, trials, substance use disorders (106) and cannabis use disor-
and incarceration of cannabis-related offenses. der is more common in those with psychiatric disor-
Tax revenues generated from cannabis legalization ders (100).
and funds no longer needed to support cannabis There is a concern that cannabis dispensaries will be
prohibition should be specifically targeted to sup- located in areas most at risk of psychiatric illness and
port efforts at restorative justice. substance use disorders (i.e. socioeconomically disad-
● The amount of funds to be contributed for these vantaged communities) and there is evidence that
purposes should be specified and not left to the vag- a positive association exists between the number of
aries of legislative priorities and regulatory agencies. medical cannabis dispensaries and number of hospita-
● Efforts to support restorative justice should be lizations associated with cannabis use disorder (107).
monitored for effectiveness. Alcohol and tobacco outlets have increased density in
more disadvantaged communities; this heightened den-
sity of alcohol/tobacco outlets is associated with the
likelihood of an individual living nearby having an
Potential consequences of legalized cannabis to
alcohol or tobacco use disorder [see (39,100,108)].
marginalized populations
Thus, those who most suffered from the conse-
The injustices of cannabis prohibition, particularly to quences of cannabis prohibition may also be more
people of color, is one of the prime justifications for likely to bear negative outcomes of cannabis legali-
cannabis legalization. Yet cannabis legalization comes zation. Those of financial means can afford the
with possible risks to these same populations. There is lawyers and bail if arrested for cannabis use; they
concern that the same issues that plague lower-income can also afford treatment of cannabis use disorder
communities around other healthy behaviors might or worsening psychiatric illnesses if needed. And
also be at play here. since many state psychiatric hospitals have down-
The “iron law of prohibition” (based upon the sized or closed over the past few decades in the
Alchian–Allan Theorem of economics) posited that as U.S., many psychiatrically ill individuals—particu-
law enforcement becomes more intense, the potency of larly vulnerable populations without easy access to
illegal substances will increase, e.g. “the harder the psychiatric care—are now arrested and incarcer-
enforcement, the harder the drugs” (96). This principle ated (109).
suggests that cannabis legalization would result in an There is a concern that, without the proper safe-
overall decrease in tetrahydrocannabinol (THC) guards, cannabis legalization could contribute to an
potency. This has not been the case. While cannabis increase in unmet health needs, possibly resulting
legalization has resulted in the availability of less potent in incarceration for people in vulnerable commu-
products like cannabidiol (CBD) and non-intoxicating nities. Efforts to avoid such an occurrence include
methods of ingestion such as topicals, legalization has earmarking sufficient cannabis-related tax revenue
also increased availability of more potent cannabis for prevention efforts (particularly in populations
flower as well as highly potent edibles and extracts most at risk), education and programming around
[i.e. Vaporizable Cannabis Concentrates (VCCs), con- healthy behavior, and treatment for substance use
sumed through vape pens, e-joints, and dabbing] and psychiatric disorders. While these approaches
(97,98). When combined with a somewhat heightened are occasionally included in ballot initiatives and/or
12 B. ADINOFF AND A. REIMAN
regulatory frameworks for cannabis revenues (Table disorders), and funds provided for substance
4), it is not yet known whether these efforts will be use prevention and treatment as well as
sufficient to avoid the potential downsides of can- restorative justice efforts.
nabis legalization. ● The legalization of cannabis will not remove
Recommendations: the illicit market nor its illicit use (e.g., public
● Sufficient tax revenues generated from cannabis consumption, underage use). Thus, penalties
legalization and funds no longer required to sup- for these offenses will persist in a regulatory
port cannabis prohibition should be used to target environment. The need to balance penalties for
prevention and treatment efforts to lessen the illicit cannabis use, cultivation, transport and
negative consequences of cannabis use and to dispensing to dissuade these behaviors while
educate the public on safer use and harm reduc- avoiding an overly punitive system will there-
tion (Table 4). fore remain an ongoing concern.
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