In 2009, an undercover Louisiana police officer approached Fate Winslow, a Black homeless man. The police officer was soliciting marijuana, and Winslow went off to obtain $20 worth of the drug from a white dealer nearby. He returned and made the transaction, whereupon he was arrested, put on trial, and—owing to non-violent priors—received a sentence of life without parole to be served at a maximum-security prison. The white drug dealer was never arrested.1 That same year, also in Louisiana, a judge gave Derek Harris, a Black military veteran, a life sentence after Harris sold a police officer .69 grams of marijuana.2 Like Winslow, Harris had non-violent priors, which automatically triggered the extremely harsh punishment.
In Mississippi in 2020, 75% of prisoners serving sentences of 20 years or more for drug charges were Black.3 While tragic, the disparity present in Mississippi was not surprising, nor was it unlike other locations throughout the United States. As a report by Human Rights Watch in 2000 notes, in Maryland and Illinois, Black people constituted a staggering 90% of all drug admissions to state prisons. The report goes on to highlight how, nationwide, drug offender admissions rates for Black men ranged from 60-1,146 per 100,000. The rate for white men, by contrast, never exceeded 139. In every single state in America, according to the Human Rights Watch report, the Black percentage of drug admissions vastly surpassed the percentage of the state’s Black population.4
A major catalyst for these numbers was former President Nixon’s War on Drugs initiative. The policies espoused in the name of this “war”—from the hyper-policing of Black neighborhoods to the expansion of mandatory minimum penalties—have torn apart millions of Black families and left countless Black communities across America severely impoverished. That marijuana arrests have been a critical factor in the ballooning of the Black prison population cannot be denied. A 2020 analysis by the American Civil Liberties Union concluded that “In every single state, Black people were more likely to be arrested for marijuana possession, and in some states, Black people were up to six, eight, or almost ten times more likely to be arrested.” Those numbers indicate a worsening trend. The ACLU’s analysis notes that “[i]n 31 states, racial disparities [in marijuana arrests] were actually larger in 2018 than they were in 2010.”5
Today, states across the country have begun legalizing marijuana for commercial sale. Accordingly, the industry is emerging as a major driver of the economy, with revenue projected to reach $130 billion by 2024.6 But in looking at the disparities in the racial makeup of ownership in the industry, what becomes apparent is Black America’s inability to secure a foothold therein. Black business owners represent 1.2-1.7% of the industry total, a number dramatically lower than their share of the population, and one completely at odds with how the group ought to be positioned given how the drug’s past criminalization so unjustly devastated the community.7 For comparison, the rate of white ownership in the American cannabis industry is 81%.8
The damage wrought by the War on Drugs remains unaddressed and unrepaired. We must advocate for that repair. And as we do, we must bear in mind that members of the Nixon administration have admitted to the targeted, intentional, and sustained nature of their policies. Therefore, if justice is to be realized regarding the disproportionate impact that cannabis convictions have on Black people in America, then restorative measures must involve the same specificity, intention, and sustained efforts that characterized the ‘War on Drugs.’ Failure to act in this manner will result in a terrible compounding of injustice. It was our ancestors, after all, who were enslaved and forced to cultivate cash crops such as cotton in order to build this nation’s economy, and we will not be denied equitable ownership in the production, distribution, and sale of America’s newest cash crop, cannabis. And while Black American inclusion in the cannabis industry is an aspect of reparative justice, the ADOS Advocacy Foundation rejects any language and legislation which frames that inclusion as reparations for slavery and Jim Crow, or as that which would constitute a meaningful solution to closing the wealth gap between white and Black Americans.
We require the following:
- Since 40% of prisoners convicted of drug crimes are Black,9 the government at all levels must mete out cannabis redress using the framework of “The 40% Rule.”
- 40% of all licenses for the cultivation, distribution, and sale of cannabis must be set aside for Black Americans, with special consideration given to those formerly incarcerated for drug crimes generally and marijuana specifically. State and local jurisdictions where cannabis is now legal must provide immediate redress in the form of a 40% set-aside for licensing, funding, training, and support of Black licensees that create a pathway to equitable ownership and sustainability in the cannabis industry. State and local jurisdictions where cannabis is not yet legal must institute The 40% Rule before one cannabis license is issued.
- The government must compel all licensees to adhere to The 40% Rule in hiring and take affirmative action to reach parity in the recruitment, hiring, promotion, and retention of Black Americans, with particular consideration for those who have been incarcerated for drug crimes.
- There must be a minimum of 60% ownership stake for Black licensees who wish to partner with non-Black investors. Non-Black investors cannot have more than a 40% interest in the company at any point in the life of the company.
- Marijuana-related taxes, fees, and costs of adherence to regulations should not be passed down to Black consumers through the Black owners. Black communities should not be burdened with the cost of repairing what America has broken with the drug war. As such, we require that a 50-year tax abatement from any marijuana-related taxes be given to all Black-owned cannabis dispensaries. Black licensees should only be subject to regular state and federal income taxes and local sales tax during this period.
- Transfer or sale of a cannabis license or business is subject to The 40% Rule.
- President Biden must issue a blanket pardon to all persons incarcerated in federal prisons for marijuana-related crimes as well as those on parole or probation. The President must also expunge their records and fully restore their voting rights. Everyone must come home. In addition, the Biden-Harris administration must direct the Offices in charge of social programs to ensure eligibility for programs such as TANF, Section 8, and Medicare to support returning citizens and ensure their reintegration into society and reunification with families. The Work Opportunity Tax Credit (WOTC) must also be increased for these returning citizens to incentivize the private sector to do its part to help returning citizens reenter the workforce.
- Ganeva, Tana. “Fate Winslow, Freed in December from a One-Time Life Sentence for Pot, Has Been Murdered.” The Intercept. The Intercept, May 10, 2021. https://theintercept.com/2021/05/10/fate-winslow-murder/.
- Crystal Bonvillian, Cox Media Group National Content Desk. “Louisiana Army Vet Serving Life Sentence over $30 Worth of Marijuana to Be Freed from Prison.” Boston 25 News. Boston 25 News, August 14, 2020. https://www.boston25news.com/news/trending/louisiana-army-vet-serving-life-sentence-over-30-worth-marijuana-be-freed/S6IWZQCE25AQ3I5SJC4S55ZURI/.
- Rep. We All Pay: Mississippi’s Harmful Habitual Laws. San Francisco, CA: Fwd. Us, 2018.
- Human Rights Watch. Rep. Punishment and Prejudice: Racial Disparities in the War on Drugs 12. 2nd ed. Vol. 12. New York, NY, 2000.
- “A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform: News & Commentary.” American Civil Liberties Union, April 16, 2021. https://www.aclu.org/news/criminal-law-reform/a-tale-of-two-countries-racially-targeted-arrests-in-the-era-of-marijuana-reform.
- Group 9: Alejandro Agustin, Jorge Alvarado. “The Economic Rise of Marijuana.” ArcGIS StoryMaps. Esri, December 10, 2020. https://storymaps.arcgis.com/stories/4c839fb0499a453d88be4ab862a96f37.
- Agustin, Alejandro, Jorge Alvarado, Gerardo Cardenas, Breonna Vann, and Talia Towe. “Chart: Percentage of Cannabis Business Owners and Founders by Race.” MJBizDaily, December 18, 2021. https://mjbizdaily.com/chart-19-cannabis-businesses-owned-founded-racial-minorities/.
- Drug Policy Alliance. “The Drug War, Mass Incarceration and Race (English/Spanish).” Drug Policy Alliance, January 25, 2018. https://drugpolicy.org/resource/drug-war-mass-incarceration-and-race-englishspanish.