A Step Towards Ending the War on Drugs
On Thursday, October 6, 2022, President Joseph R. Biden announced that he was pardoning all U.S. citizens with federal charges for simple marijuana possession, without condition. Biden further urged all governors to consider taking the same action for state offenses and called on DoJ to review the current scheduling classification of cannabis.
While this action by President Biden represents a reasonably small step towards desperately needed comprehensive federal cannabis policy reform, it is a step that no Administration has taken in over forty years.
And if you understand the history and impact of our nation’s failed War on Drugs, along with the potential for the legal cannabis industry to repair the damage caused by this deeply racist initiative, you will understand why this small step is such a big deal.
There is no better way to begin an examination of the impact of the War on Drugs than with the words of John Ehrlichman (1994), former Counsel and Assistant on Domestic Affairs to the architect of the War on Drugs, President Richard Nixon, as originally reported by Dan Baum for Harper magazine:
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I'm saying? We knew we couldn’t make it illegal to be against the war (Vietnam) or Black, but by getting the public to associate the hippies with marijuana and the Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.
Ehrlichman is saying in clear and certain terms that the War on Drugs was a carefully curated weapon of mass destruction designed by the President of the United States to be deployed, with surgical precision, on black communities. And it was effective. Forty-four year later, the Federal Government is finally starting to do something about it.
The Wealth Gap - Made in America
Ehrlichman’s quote informs us that Nixon felt he had to combat a civil and political uprising within Black and Brown communities by waging a war on our own citizens. But what precipitated this unfathomable decision? Let’s rewind a bit.
The line of demarcation between wealthy white and disadvantaged Black and Brown communities in the U.S. didn’t form accidentally. It was assembled with shackles and chains, transported here on boats, developed on plantations and cemented through anguish, torture and endurance. Then, following the formal abolishment of slavery, U.S. governments and institutions came up with new ways to deepen the prosperity gulf between Black and white people in the country.
One of the first examples of post-slavery programmatic racism emerged with the implementation of social security. Social Security was developed with the intention of helping workers accumulate a protected financial safety net for the future. Notably though, agricultural and domestic workers, who at the time were predominantly Black and Brown people, were excluded from participating in the program.
In the same time-frame legislation was passed giving workers the right to unionize. Unionization meant that employees could utilize the power of collective bargaining to secure higher wages, improved conditions, job security, and medical benefits among other things. African Americans however, were explicitly banned from union membership, which meant they were barred from receiving the new benefits, job security and higher wages granted to their white counterparts.
By the 1940’s the government had implemented programs to enable families and individuals of modest means to become first-time home owners through subsidized housing loans. This put the dream of home ownership, previously only attainable by the nation’s wealthiest, within reach for working class Americans. But only some working-class Americans. The ability to secure a government-backed loan depended on the “rating” assigned to a property by an underwriter. Keep in mind that in several states “black” and “white” neighborhoods had already been formed through segregationist-minded zoning laws used to keep Black people secluded to certain areas.
Therefore, houses in white neighborhoods were given the highest rating, while houses in communities with non-white residents received the lowest ratings. As a result, Black and Brown people were denied government backed loans as well as the opportunity to become homeowners. An article by PBS notes, “Of the $120 billion worth of new housing subsidized by the government between 1934 and 1962, less than 2 percent went to nonwhite families. Nonwhites were locked out of home ownership just as most white Americans were finally getting in.”
And when states’ segregation-zoning laws were deemed unconstitutional, housing communities picked up the mantel by implementing provisions preventing the sale or lease of homes to Black or Brown people, regardless of their ability to secure a loan. Further compounding these devastating blows to the future of Black and Brown Americans was the fact that, the demand for housing and cost of living in non-white neighborhoods were exponentially higher than white neighborhoods, while the quality of public services provided (i.e., sanitation, transportation, etc.) were much lower.
For decades, white people and white communities were the benefactors of profoundly discriminatory government programs that funded housing development, critical infrastructure, business growth, education opportunities and more. These programs laid the foundation for what would become a financially comfortable and predominately white, middle class America that was able to accrue wealth they could pass down to future generations.
Meanwhile, many Black and Brown Americans who had been explicitly excluded from government assisted estate development were only able to accrue poverty, poverty they would pass on to future generations. Add to these horrors the bleak conditions within American ghettos (underserviced and underdeveloped neighborhoods into which Black and Brown Americans were forced, segregated and financially confined), and an ongoing Vietnam War into which Black and Brown Americans were conscribed, and you understand how the cries for civil rights in the U.S. began echoing throughout the country and into the halls of the White House.
Staging the War
On January 20, 1969, Richard Nixon took the oath of office to become the 37th President of the United States. Almost immediately upon taking office, Nixon began to lay the groundwork for what would become the War on Drugs. Nixon understood the swelling outrage surrounding the United States’ ongoing involvement in the Vietnam War as well as the growing movement within the African American community to unify and mobilize against deep and increasingly systemic racial inequities in the U.S. So how do you distract the country from a failed war that has killed hundreds of thousands of American Service Members, suppress your opponents, and potentially look like a savior?
On October 27, 1970, President Nixon signed the Comprehensive Drug Abuse Prevention and Control Act (CDAPCA) into law, which was packaged as an effort to combat drug use and drug trafficking by prioritizing treatment over punishment for users, and providing harsher penalties for traffickers. And, while it did largely do away with the mandatory minimum sentencing implemented under the Boggs Act of 1951, it also included the Controlled Substances Act (CSA). The CSA established a formal system of categorization for controlled substances that placed each into one of five “schedules”. The schedules are based on “…the substance’s medical use, potential for abuse, and safety or dependence liability”. Within this system, Schedule I substances are considered the most addictive and least beneficial, and the Nixon Administration quickly categorized marijuana as a Schedule I drug, along with heroin and LSD.
Launching the War
In 1971, with the CSA in effect, Richard Nixon announced that “drugs were public enemy number one” and officially activated his War. From this point forward, Nixon increased federal funding for drug control agencies, created the Special Office for Drug Abuse Prevention (SODAP), established the Drug Enforcement Agency (DEA), and began shifting his advocacy efforts away from the CDAPCA’s treatment-based approach to drug use and more towards punitive measures. In 1972, the National Commission on Marihuana and Drug Abuse (also known as the Shafer Commission), established under the CSA (and appointed by Richard Nixon) submitted a report calling for the decriminalization of marijuana possession in the U.S. Unfortunately, at this point Nixon’s war was gaining steam and he not only rejected the Commission’s recommendation, but eventually announced plans to establish harsher penalties for drug crimes, to include the reinstatement of mandatory minimum sentencing.
While Nixon wouldn’t remain in office long enough to oversee the full execution of his plans, he did successfully build the framework for the War on Drugs. Furthermore, he planted the seeds of fear and blame for rising crime rates towards non-white communities as his rhetoric escalated news coverage of Black and Brown bodies being arrested across the country.
When Nixon resigned in August 1974, he handed the reins of control and a heap of domestic and international turmoil to his then Vice President, Gerald Ford. Ford’s focus during his brief tenure would be on curbing inflation and combating the subsequent recession vs drug crime. Then, just over two years after assuming the office, Ford lost his bid to become the 39th President to the former Governor of Georgia, Jimmy Carter who, among other things, campaigned on the decriminalization of marijuana. As a result, from late 1974 to 1980, when Jimmy Carter lost his reelection effort to Ronald Reagan, there was a brief deceleration of the war on drugs. But the Reagans were coming to town, and the War was about to heat back up.
Waging the War
By 1981 bellbottoms and anti-war sentiment were falling out of fashion, shoulder pads and cocaine were becoming increasingly ubiquitous, and Americans were looking for a hero. But as you know, every great hero needs a foil, and Ivan Drago was still in training. So, when Ronald and Nancy Reagan rode into town, they were armed and ready to unload on America’s next super-villain…drugs (in Black & Brown neighborhoods).
Ronald Reagan was sworn in as the 40th President of the United States on January 20th, 1981. By October of the following year, echoing the battle cry of Richard Nixon, he re-declared a War on Drugs. Shortly thereafter, Nancy found what would be her most enduring legacy, the “Just Say No” campaign. With that, the Reagan’s affirmed their commitment to reigniting and proliferating what would become America’s longest War.
Throughout Reagan’s first term, “crack” cocaine grew ever-present in lower-income, predominantly Black and Brown communities as a cheaper version of powdered cocaine that was popular within wealthier white populations. By the start of his second term, the War on Drugs rhetoric was beginning to resonate within the country and Congress passed the Anti-Drug Abuse Act of 1986, that resurrected mandatory minimum sentences for certain drug crimes while simultaneously removing the possibility of parole.
Then, two years later, Congress passed the Anti-Drug Abuse Act of 1988, which among other things: 1) denied Federal benefits (grants, contracts, loans, licenses, and public housing) for a period of time to individuals convicted of either drug trafficking or drug possession charges; 2) increased the mandatory minimum penalty for drug possession to five years; and 3) implemented a staggering double standard between the amount of crack cocaine (five grams), and the amount of powdered cocaine (500 grams), that triggered the mandatory minimum prison sentence of five years.
Sadly, these racially targeted and overly punitive polices persisted well past the public’s interest in the War on Drugs. Over the years, countless scholars, judicial experts, and civil rights leaders have, to no avail, decried the War on Drugs and the overwhelming damage it has done to minority communities, the U.S. economy, and society as a whole. Unfortunately, once the systems, agencies, judicial requirements, and law enforcement protocols were set, they simply remained in place, largely untouched by the five Administrations that would follow. Ultimately, the overall cost of the War on Drugs would greatly exceed its one trillion dollar price tag.
The Fallout
In 1980 there were under 50k people incarcerated for drug offenses in the United States, by 2019 according to data from the Sentencing Project, that number fell just shy of 500k.
A detailed report on federal, state and private prisons across the country by the Prison Policy Initiative explains that, as of 2022 there are 1.9 million people incarcerated across the United States, and of those, one in five was incarcerated for a drug offense. The same report notes that, Black Americans make up 38% of the incarcerated population despite representing only 12% of U.S residents.
In a 2015 report on the War on Drugs, the Drug Policy Alliance wrote, “With less than 5 percent of the world’s population but nearly 25 percent of its incarcerated population, the United States imprisons more people than any other nation in the world – largely due to the war on drugs. Misguided drug laws and harsh sentencing requirements have produced profoundly unequal outcomes for people of color.”
And, according to the latest data available from the Federal Bureau of Investigation (FBI)’s Crime Data Explorer database, in 2020 there were 226,748 arrests in the U.S. for the possession of marijuana, of those people 87,584 were Black. Therefore, nearly 39% of cannabis possession arrests in the U.S. in 2020 were of black people, who again, constitute only 12% of the population.
So, what happens to the millions of people who are or have been arrested/incarcerated for drugs, many for simple possession? What happens to their families?
When people go to prison, the impact of that incarceration extends far beyond prison walls. Children lose parents, parents lose children, spouses lose spouses, families lose sources of income, those left behind may lose jobs and/or housing, children and siblings lose educational opportunities, and communities lose trust. The Drug Policy Alliance 2015 report found that “2.7 million children are growing up in U.S. households in which one or more parents are incarcerated.” And “One in nine Black children has an incarcerated parent, compared to one in 57 white children.”
Further, the NAACP reports that inmates are five times more likely to be infected with HIV than the general population, and mental health issues are deeply exacerbated and rarely treated during incarceration. Finally, once the time has been served and those convicted of crimes are released, they are stripped of voting rights, parental rights, housing opportunities, employment opportunities, and certain financial rights. And to this day, even with proliferating cannabis legalization, the devastating and potentially life-long repercussions of having a criminal record for a cannabis-based offense are still overwhelmingly and disproportionately impacting Black and Brown communities. So, how do we begin to correct it?
Operation New Industry
Cannabis is not a new industry, but for the U.S. a legal cannabis industry is new. Right now, we have a tremendous opportunity to correct decades of overt and crippling institutional racism by implementing smart and intentional cannabis policies. Cannabis could be the first industry in which a portion of tax revenue from every market in America goes towards rectifying mistakes that have ruined communities and lives for generations. Criminal Justice reform, policy reform and equitable community investment should be the bedrocks of the burgeoning legal cannabis industry’s mission. Legislators, regulators, businesses and communities need to work together to ensure that the policies and practices that govern the industry will benefit all, not some.
Fortunately, we are starting to see more examples of smart and thoughtful cannabis policy emerge as states place priority on minority operators, small businesses and disadvantaged communities. An outstanding example is New York’s freshly legal adult-use market. The Empire State’s ambitions social equity program aims to award 50% of the state’s licenses to equity applicants and plans to direct 40% of cannabis tax revenues to communities that have been disproportionately impacted by over-policing born out of the ill-conceived War on Drugs. Equity applicants include minority-owned businesses, woman-owned businesses, service disabled veterans and distressed farmers.
So far, New York is keeping its promises. In addition to implementing automatic record expungements of convictions for activities that are no longer criminalized, the state began accepting Conditional Adult-Use Retail Dispensary (CAURD) applications on August 25, 2022 for their Seeding Opportunity Initiative. This Initiative is a groundbreaking approach to empowering and prioritizing individuals who suffered from past laws to ensure they will “make the first sales of adult-use cannabis in New York with products grown by New York farmers.”
While a few states are rising to the challenge of truly equitable cannabis policy reform, there remains a tremendous amount of work to be done to reverse course on decades of damage. So, the idea that the federal government is just now taking steps towards that effort, and small ones at that, feels painful if not cruel. But consider this, despite 35 states and D.C. having some form of legalized cannabis at the time, the Drug Policy Alliance’s 2020 Annual Report found that “drug possession is the most arrested offense in the United States, with one arrest every 23 seconds” and, that Black people are three times more likely to be arrested for drugs than white people, despite equal use.
So, pardoning all simple cannabis possession offenses at the federal level and calling for a review of cannabis scheduling is a small step, but an extremely important one in the right direction for the first time in over four decades.
Square Root Group, LLC is dedicated to educating Federal, State and Local governments, communities and industry on how to build or reform strong, functional cannabis policy that benefits all stakeholders while restoring equity to those who have been underserved and overburdened.