It is no secret that America’s “War” against Marijuana has been a losing battle. Ever since its inception nearly 50 years ago, the United States has spent nearly one trillion dollars, diverted numerous law enforcement resources and contributed to the steep incarceration rate in America all while failing to reduce the usage rate amongst the general population.

Authored: By: Michael Cronin

  1. INTRODUCTION

[1] Sadly, this war has had a disproportionate effect on minorities in the United States, almost entirely by design. [2] The origins of marijuana prohibition are littered with negative stigmas about the effects of the drug and unfounded prejudice towards the Mexican Americans and Black communities. [3] Sadly, the enforcement of the prohibition has been a reflection of the racial prejudice and stigmas that surrounded the creation of those laws. [4] Even today as state-wide legalization continues to sweep across the country the negative stigmas that have plagued marijuana continue to disproportionately impact minority communities. The legal adult-use cannabis industry or “Green Economy” is heavily controlled by white entrepreneurs due to the numerous laws and policies created by states. [5] On top of that, even in states that have legalized or decriminalized marijuana, arrests continue to affect Black and minority communities the most. In this essay I will show, 1) how zoning has and continues to be used to restrict the location and prosperity of businesses, 2) the history of marijuana and the negative stigmas that haunt it to this day, and 3) show how the negative stigmas surrounding marijuana contribute to the continued high arrest rate of Blacks compared to whites and how those stigmas are controlling zoning laws which make it harder for minorities to participate in the green economy.

 

HISTORY OF ZONING AS ORDER-MAINTENANCE

In her article entitled Ordering (and Order In) the City, Nicole Stelle Garnett analyzes tactics used by cities and city officials to regulate “disorder” in neighborhoods that they consider to be in decline. [6] Garnett discusses how community policing efforts implored by cities as a method of social control are based on a commonly held belief of how neighborhoods spiral into decline and how cities should address this issue. [7] In her observation, Garnett points out how many of the community policing methods used by cities include property-based regulations. [8] The most popular of these property-based regulations is a focus on restoring order through the regulation of allowed and disallowed behaviors in public spaces. [9] Garnett outlines how overly-regulated or mis-regulated property based social controls that are meant to counteract disorder may prove to be more harmful to certain communities than beneficial. [10]

  1. The Broken Windows Theory

In Ordering (and Order In) the City, Garnett highlights a theory derived from a 1982 article written by James Q. Wilson and George L Kelling called Broken Windows: The Police and Neighborhood Safety, as a major influence in the shift to use property-regulation to combat disorder in cities. [11] In this article, Wilson and Kelling present the “Broken Windows Theory” as a common belief that any sign of unchecked disorder in a neighborhood, even something as small as a broken window, triggers further acts of disorder that compound and deteriorate a neighborhood. [12] Wilson and Kelling argue that in order to combat this deterioration, there is a need for policing methods which are aimed at the removal of “broken windows” or what is considered disorderly conduct such as public drunkenness or vagrancy. [13] The type of community policing that Wilson and Kelling suggest works best is known as “order-maintenance”, which addresses issues before they happen, as opposed to crime fighting policing which takes place after an issue has occurred. [14] The point of order-maintenance was to create sanctions which gives police the tools to remove disorderly conduct from neighborhoods, thereby reinforcing confidence in the effectiveness of the police and discouraging further disorderly conduct from occurring. [15] This is where Garnett begins to make the connection between the broken windows theory and property-based regulation. [16]

  1. Policing “Disorderly” Conduct

In Ordering (and Order In) The City, Garnett points out that many scholars who have previously analyzed the broken windows theory have made connections between order-maintenance policing and the focus on the regulation of conduct in public places (i.e. parks, streets, etc.) [17] Wilson and Kelling address this as well. In their Broken Windows article, Wilson and Kelling argue that in order for police to remove disorderly conduct, regulations first need to be in place for the police to enforce. [18] Common examples of these regulations include the prohibition of acts such as vagrancy, public drunkenness, breach of peace, and loitering in public spaces. [19] In Broken Windows, the authors recognize that the significance of these charges for “victimless” conduct are used by police not as ways to punish people but rather as methods for police to remove people who are participating in acts of “disorder”. [20]

Although this order-maintenance method may be useful in counteracting disorderly conduct thought to be the root cause of deteriorating neighborhoods in the broken windows theory, there have been many criticisms of encouraging the use of these social controls against individuals. [21] For starters, there is a question of the constitutionality of these sanctions. [22] In 1968, the Supreme Court heard a case called Powell v. Texas, where the plaintiff challenged the constitutionality of a Texas law which imposed a $100 fine on anyone who was drunk in public or not in privacy of their own home. [23] The plaintiff’s main argument was that imposing a law such as this on citizens imposes on their Eight Amendment right to not be subjected to “cruel and unusual punishment”. [24] However, the Supreme Court defended the constitutionality of this law claiming that the state has the right to impose any criminal sanction on behavior in public places so long as that behavior may create substantial health and safety hazards for the individual or other members of the community. [25]

In Powell, the decision by the Supreme Court seems to share common ideas with the broken windows theory. So long as the conduct in question offers a threat to the health and safety of oneself or others, then there is a reason to police it. Yet, this broad idea of what may or may not be considered a “threat” leads to another criticism of imposing legal sanctions of disorderly conduct, which is, that it grants police broad discretion over what type of behavior they consider in violation of these sanctions. [26] Wilson and Kelling even address this issue in their Broken Windows article. [27] Having studied police behaviors in 1968, Wilson acknowledges that in cases where police departments are majority white, racial discrimination has often been used to target Black people and minorities more often with these order-maintenance social controls. [28] Other scholars have also concluded that laws which give police discretion in controlling people who seem suspicious, are merely used as a substitution for true police work and encourages police harassment. [29] Despite recognition of potential for abuse by police, Wilson and Kelling still support order-maintenance policing so long as the proper steps taken to train and supervise the police are taken to ensure fairness. [30] If only it were that easy.

Regardless of the truth behind Wilson and Kelling’s broken windows theory, or the effectiveness of the order-maintenance policing born from the theory, social controls of conduct via property-related regulations continues to be a popular tactic amongst lawmakers across the country. [31] Subsequently, Garnett argues that conduct related sanctions aren’t the only form of property regulation used for order-maintenance in cities. [32] In fact, Garnett continues to explain how order-maintenance influences zoning and land use decisions in many cities across the nation.[33]

  1. Order-Maintenance in Zoning

Euclidian Zoning, the most popular form of zoning in America, regulates property by separating different types of land use in a city or town. [34] The purpose is often to separate economic properties from non-economic properties, for example, a law which ensures that an industrial factory doesn’t pop up in the middle of a suburb filled with family homes. [35] Euclidian zoning is born from a famous 1920’s land use case named Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

In Euclid, a landowner sought an injunction against the new zoning laws of the municipal corporation on the grounds that it violated his Fourteenth Amendment right to liberty and property without due process. [36] The landowner claimed that the ordinances imposed decreased the value of his land when the municipal corporation designated a certain portion of his land to be in a zone only for use of residential purposes, meaning that the parcel would be less valuable than if it were to be used for industrial purposes. [37] In discussing the power of legislative authorities to create zoning restrictions such as this, the Court held that so long as the purpose of the ordinance is reasonably related to the promotion of health and safety of the community, and so long as they are not arbitrary and capricious, then they shall be upheld as constitutional. [38]

The constitutional holding in Euclid is what Garnett believes attracts lawmakers to the idea of zoning as a form of order-maintenance. [39] Unlike some order-maintenance social controls like ones used to counteract loitering or vagrancy, city officials do not need to worry about the use of zoning laws being questioned by courts. [40] As Garnett puts it, “As a matter of federal constitutional law, it is well established that non-confiscatory land use regulations are subject to rational basis review—that is, they will be upheld if the court is satisfied that some conceivable government interest justifies the government policy.” [41]

The association between the presence of certain types of property in a residential neighborhood and disorderly conduct is not a part of the broken windows theory used to justify order-maintenance policing theories. However, there is a common agreement that zoning is effective in curving undesirable behavior and disorderliness in a neighborhood, a notion popularized by so-called “positive environmentalists.” [42] As Garnett points out, the National Conference on City Planning in their amicus brief for the Euclid case argues that there is research which backs the notion that the physical environment around a neighborhood has a detrimental impact on the health and character of individual households and individuals themselves. [43] The attractiveness of using zoning restrictions, which have a very minimal basis of rationality to satisfy, to curve this impact is obvious. However, for the same reason that makes it attractive to the policymakers, the ease of satisfying a rational basis test is also what makes it dangerous for people involved in the industry being targeted.

In her article entitled Viewpoint Neutral Zoning of Adult Entertainment Businesses, Shima Baradaran-Robison highlights how cities have traditionally been able to enforce restrictive zoning measures on adult businesses, such as adult movie theaters. [44] Baradaran-Robison notes how many consider adult businesses as a violation to their “moral standards” but, despite this common consideration, the businesses could not be banned on the material of their business due to the First Amendment. [45] This is why courts have come up with the “secondary effects” doctrine, in which it states that zoning ordinances can be upheld so long as there is a rational relation between the “effects” of the business and their negative impact on the health and safety of the community. [46] In the same way that policymakers have lots of room to prohibit conduct that they deem disorderly using social control sanctions, policy makers can also easily prohibit businesses that they deem disorderly via zoning restrictions by backing it up with some feature of health and safety preservation.

Regardless of the truth behind the link to these businesses and disorderly conduct, or the effects on the health and safety of the community surrounding it, one fact remains true: policymakers have lots of discretion in deciding which activity or business is a disorder. So long as they can come up with a minimal health and safety reason for imposing this social control or zoning law, any activity can be subject to harsh restrictions. Undoubtedly this has done some good in preventing crime, otherwise it would not be so popular. Nonetheless, the question must be asked, what happens if that certain activity has been biased against and demonized for years prior to its legalization?

 

THE HISTORY OF MARIJUANA PROHIBITION

As with many prohibition laws, the laws that have restricted the use or sale of marijuana were influenced by campaigns radicalizing the health and safety measures surrounding the drug. [47] Prior to its prohibition, many troubling anti-marijuana campaigns were centered around prejudice towards Mexicans and Blacks. [48] In Colors of Cannabis: Race and Marijuana, Steven W. Bender outlines the common rhetoric surrounding marijuana bans, particularly in the south. [49]

“In states with significant Mexican populations, such as Texas, Mexican prejudice was the catalyst for prohibition. As contended on the floor of the Texas Senate in the early 1900s, ‘all Mexicans are crazy, and this [marijuana] is what makes them crazy.’ In Southern states with large black populations, fears of violent black smokers led to marijuana laws. As I summarized elsewhere, fueled by prejudice, ‘marijuana was scapegoated as prompting murder, rape, and mayhem among blacks in the South, Mexican Americans in the Southwest, and disfavored white immigrants from laboring classes – with marijuana blamed for the seduction of white girls by black men and for violent crimes committed by these groups.’ By the time of the exploitative 1936 film Reefer Madness, most states had outlawed marijuana, and the federal government soon followed with the Marihuana Tax Act of 1937 banning nonmedical uses. This act was a precursor to later federal laws designating marijuana as a Schedule 1 dangerous drug with no safe uses, effectively banning even medical marijuana.”[50]

Even top officials in the White House during the time of prohibition admit that the premise behind prohibition was to be able to target neighborhoods and communities of color.[51] The vilification of marijuana is the fuel that led to years of unjust enforcement.

After years of anti-marijuana and drug campaigns, America entered into its so-called “War on Drugs” with the passing of the Controlled Substances Act (CSA), 21 U.S.C §800 in the 1960’s, which labelled marijuana as a Schedule 1 drug. [52] Schedule 1 drugs under the CSA are defined as drugs which have a high potential for abuse and dependency and no recognized medical use or purpose. [53] To this day, Marijuana remains federally illegal and classified as a Schedule 1 Drug alongside heroin, cocaine and bath salts under the Controlled Substances Act.

Enforcement of the laws surrounding marijuana is reflective of the campaign that fueled its prohibition. In 2013, the American Civil Liberties Union (ACLU) released an article analyzing the disproportionate statistics of arrests amongst minorities in America. [54] In The War on Marijuana in Black and White, the ACLU indicated how a Black person is 3.73 times more likely to be arrested for marijuana possession in America despite the usage rate being nearly equal between whites and Blacks. [55] In 2010, 14% of white people and 12% of Black people had reported using marijuana in the past year, yet the arrest rate for marijuana possession was significantly lopsided against Black people. [56] In some counties the arrest rate was almost 8 times more likely if you were Black, including in our nation’s capital. [57] It is clear to see that the laws created by implicating prejudiced racial biases have had their effect on those targeted communities.

With prohibition having plagued the country for more than 4 decades, the marijuana legalization trend caught fire around the late 90’s and Early 2000’s. [58] However, it wasn’t the recognition of protests to the lopsided arrests of Blacks and minorities which inspired legalization efforts in the state legislative houses. Recognition for beneficial uses of the drug in the form of medical marijuana and tax benefits derived from sales is what mostly drove the legalization efforts in local governments. [59] In The Colors of Cannabis, Bender argues that in a majority of the legalization campaigns there was a lack of desire to correct the injustice to Blacks and minorities and rather a push to take the power of the marijuana market out of the hands of cartels (assumed operations controlled by people of color) and place it into the hands of the American people. [60] Rather than correcting the false narrative that marijuana is the cause of disorder, the champions of legalization took the illegal market whose enforcement plagued Black and minority communities for decades and gave it to the local governments under the guise of “taking control”.

Despite the continued federal ban and Schedule 1 classification, many states began the process of repealing prohibition and in 1996 California became the first state to legalize medical marijuana.[61] Since then 37 states have rolled back laws on prohibition, 11 states and the District of Columbia have legalized recreational use of marijuana, 15 others have decriminalized use and 33 total have legalized marijuana for medical use. [62] As of September 2016, 57% of U.S. adults support marijuana legalization and only 37% believe that it should remain illegal. [63] A sign of growing support for the end of the federal marijuana prohibition is apparent, but slow moving. For now, questions of how to enforce the recreational market in individual states looms.

 

ORDER-MAINTENANCE IN THE LEGALIZED CLIMATE

As previously stated, despite the fact that marijuana legalization laws are being implemented nationwide, they are rarely the result of a government effort to correct deeply-rooted negative stigmas or provide justice to the communities impacted by the prohibition. Although many human rights and criminal rights groups, the ACLU included, have advocated for the correction of the disproportionate policing of marijuana, their calls often seem to fall by the wayside. Instead, the governments previously in control of enforcing the laws which created issues in its prohibition, are now tasked with creating and enforcing laws surrounding its legalization. Clearly, reversing the impact of their former policies was always going to present a challenge.

  1. Policing in the Legal Climate

In The War on Marijuana in Black and White, the ACLU acknowledges the impact that the broken windows theory of policing has had on marijuana arrests. [64] A clear connection can be made here between the criticisms of broken windows style policing in part 1 of this essay and the racial bias of marijuana in American society. As Wilson and Kelling had pointed out, a major issue with order-maintenance social controls is the discretion it gives the police in making arrests under these sanctions. [65] During the years of marijuana prohibition, the disproportionate impact of arrests founded on racially prejudiced laws were inevitable. However, now that marijuana has been legalized in a number of states those numbers should go down, right? Wrong.

In 2020 the ACLU released its follow up to its 2013 report titled A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform. [66] This report was a way of checking the disproportionate arrest statistics years after their initial report and in a climate where marijuana is recreationally legal or decriminalized in a majority of states following the 2016 elections. [67] Despite the improvements in the law, Black people are still 3.64 times more likely to be arrested for marijuana possession in America, only a 0.09 drop from the previous report. [68] Yet, every state isn’t fully legal across the country so how about in a state in which marijuana became recreationally legal after the 2013 report?

In Massachusetts in 2010, the chances of being arrested for the possession of marijuana was 3.41 times more likely if you were Black. [69] At the time this was just a bit below the national average of 3.73. Yet, following the legalization of marijuana in the state of Massachusetts in 2016, the arrest rate for marijuana possession of Black people in 2018 was 4.04 times that of a white person. [70] Despite the fact that the overall number of arrests for marijuana possession went way down in 2018 compared to what it was in 2010, the likelihood of arrest for Black people still went up by 0.63.

Massachusetts is not an outlier in this case either. In Colorado, after amendment 64 was passed allowing the recreational sale of marijuana, the number of overall marijuana arrests went down, yet the arrest frequency rate for Black people remained dramatically higher. [71] Although Blacks made up only 3.8% of Colorado’s population, they accounted for 9.2% of the marijuana possession arrests after legalization. [72] Why, in states where marijuana is now legal, is the arrest rate still disproportionately affecting Black and minority communities.

I believe that the best explanation is that the order-maintenance social controls, derived from the broken windows theory, and implemented to combat the marijuana prohibition still largely exist to this day. In Prison For You. Profit For Me., Elizabeth Danquah-Brobby points out that despite legalization, numerous social controls still exist to be policed. [73] Possession is limited to only one ounce, the use and purchase age is 21, selling without a license is still illegal, growing is limited to six plants per household (up to 12 in Massachusetts if more than one person over the age of 21 lives in the residence), driving under the influence is still illegal and numerous other laws to be enforced still exist. [74] The ability for police to use their discretion in making arrests is still available for many reasons. On top of that, there are a few property-related social controls that I believe contribute to the arrest rate. For example, sanctions concerning public or social consumption.

Despite statewide legalization and a majority of towns voting to allow recreational sales in their town, there are zero municipalities in the state of Massachusetts that allow for social consumption. [75] This means that the only place that people are legally allowed to consume any marijuana products in Massachusetts is in their privately-owned residence. Order-maintenance laws still exist state-wide that prohibit the consumption of marijuana in public places. Much like other property-related social controls (public drunkenness, etc.), marijuana consumption in public is still considered a sign of disorder. People who wish to keep their neighborhood safe and free from deterioration have the desire to keep marijuana consumption hidden from public view. As a result, where a law exists that addresses marijuana use and possession, that law will most likely impact Blacks more than whites.

Another possible contributing factor to the higher arrest rate of Black people is the lower number of home ownership. One exemption to the law of smoking marijuana on private property is that property owners or landlords can choose to ban the choice to consume or grow marijuana on a premises if they so choose. [76] Therefore, renters may be subject to their landlord’s choice to ban the use of marijuana on a premises. If someone lives in rental housing, they may be subject to eviction for consuming marijuana in their home, forcing them to find other places to consume. It is legal for landowners to implement this ban in their home for anything including alcohol and tobacco, however, it is far more likely that this ban will refer to marijuana given the negative stigma that surrounds it. The percentage of home ownership in America for Black people is 41% as opposed to the 71% national home ownership rate for white people, [77] making it more likely that a Black person will rent instead of own property and be subject to a marijuana restriction by their landlord. Even more surprising, in Massachusetts that home ownership percentage for Black people drops down to 35%. [78]

As previously stated, order-maintenance laws are born out of the thought that something which is considered a “disorder” signals the breakdown of neighborhood. It is highly likely that marijuana, which still carries this negative stigma will be categorized as a disorder that signals the deterioration of a neighborhood. Despite the fact that overall deaths and addiction rates from marijuana are lower than alcohol and cigarettes, the consumption of marijuana in public is still prohibited and strictly enforced. Additionally, according to the broken windows theory, all that a city needs to do in order to enforce this order-maintenance social control is relate it to some form of health and safety of the community. After decades of preaching the evils of marijuana use, it is undoubtedly not hard for a city to fulfill that requirement in order to implement their marijuana-related social control.

In Ordering (and Order In) The City, Garnett makes the connection between the broken windows theory, order-maintenance social controls and their use in property regulation. [79] Garnett argues that these controls are used to target disorder, so long as they are upheld with some rational relation to the health and safety of the community, and she goes on to provide examples of how this is also used in the zoning of property. [80] I argue that the relationship Garnett indicates between order-maintenance and zoning similarly applies to the newly legal industry of recreational marijuana.

  1. Order-Maintenance and Zoning in the Legal Marijuana Industry

In Zoning, Race and Marijuana: The Unintended Consequences of Proposition 64, the author, Alexis Holmes, makes this similar connection between the negative stigmas haunting marijuana and the land use regulations being made by municipalities. [81] Holmes argues that moving marijuana away from law enforcement does not remove the idea of it as a disorder, it only changes the method of addressing the disorder. [82] It shows that in cities and counties where marijuana is unpopular but is now legal state-wide, these jurisdictions have enforced more restrictive zoning requirements. [83] For example, San Bernardino County has completely restricted every manner of marijuana cultivation available to it. [84] And in other counties, if marijuana sales are allowed then the dispensaries are often located in industrial zones and spaces more than 600 feet from school or heavily populated areas. [85] This can be challenging for the industry participants as it makes it more difficult to find spaces suitable for cultivation or sales that fit in the rigorous requirements of zoning.

As Garnett pointed out, these zoning restrictions are very easy for policymakers to impose. [86] So long as the zoning requirements satisfy some caveat of health and safety for the community, they are nearly impossible for members of the industry to oppose. As we saw in Viewpoint Neutral Zoning of Adult Entertainment Businesses by Shima Baradaran-Robison, zoning restrictions can parallel the popular opinion of the disapproval of a business, so long as there is a rationally related health and safety concern that policymakers can uphold. [87] Furthermore, as long as the requirements are not arbitrary and capricious, in the eyes of policymakers and the courts, anyone can participate in the industry. In actuality, zoning regulations can have the same disproportionate effects that marijuana law enforcement had in the decades that proceeded legalization. Accordingly, as states continue to establish legal marijuana industries, ownership of these businesses by Black and minority entrepreneurs is staggeringly low.

In Massachusetts, only 5% of registered agents (people legally allowed to engage in the marijuana market) identified as Black/African, 7% identified as Hispanic, Latino or Spanish and 74% identified as White. [88] As of November 2019, 97% of final license members, did not meet the criteria of “Diversity in Industry Ownership”—where over 51% of the ownership group needs to be controlled by a person identifying as a woman, minority, LGBTQ, veteran or disabled. [89] Despite the economic empowerment program, designed to offer license application priority to members of communities heavily impacted by the marijuana prohibition, as of November 2019 none of the final licenses approved by the Massachusetts Cannabis Control Commission were awarded to economic empowerment applicants. [90]

The story remains similar in other states too. As Elizabeth Danquah-Brobby puts it, white men are currently profiting off of the same thing that got minorities locked up for nearly 40 years. [91] So how does zoning come into play here? I believe that the restrictions that policymakers are implementing in zoning are a major cause in the exclusion of Black people from the market. For starters, the economics of the zoning regulations make it extremely challenging to find appropriate and affordable property. As stated previously, many zoning regulations make it so that cultivation or recreational sales locations cannot be within a certain distance from schools, residences or other areas where the city deem it a risk to the health and safety of the community. Additionally, many of the properties are required to be smell-proofed, remain out of site from the general public, and have extensive security measures to prevent access to the product. In turn, these properties can get very expensive.

Danquah-Brobby points out the monetary issues with entering the marijuana business in Prison For You. Profit For Me. [92] In marijuana, as opposed to other businesses, it’s very difficult to get mortgage or business loans from banks due to issues with the federal government and banking laws. [93] Also, renting property isn’t an option many times due, once again, to restrictions by landlords. Usually the only option for those who wish to find property for a marijuana business, is to purchase property using private investors. Considering that the average wealth disparity between white and Black households in 2011 was around $104,000, it is safe to assume that wealthy investors are most likely going to be white. [94] On top of that, many theorize that additional requirements compound the monetary issue with entry into the market. In its analysis on the lack of diversity in the market, the Massachusetts Cannabis Control Commission speculated that high application fees, licensure processes, cost of training, state required staffing and security measures stack on top of the disparity in wealth between Blacks and whites to create this imbalance. [95]

The negative stigmas that label marijuana as a disorder have clearly made an impact on the zoning regulations imposed in the legal industry. Holmes makes this connection in Zoning, Race and Marijuana when she equates the zoning of marijuana to concerns from citizens and municipalities about alcohol and prostitution as disorders which were also solved by zoning. [96] Whereas she and Garnett both express their concerns about this practice and its impact on the viability of certain neighborhoods, my concern is the impact that zoning is having on the diversity of ownership. Whether or not the concerns of health and safety are true, cities and policymakers are using these concerns to justify zoning requirements which feed inequality in the legal market. Hopefully this is not the intention of policymakers, but it is however, the outcome. So how do we address it?

POTENTIAL SOLUTIONS

My suggestion is that the taxes from marijuana sales should not only be used to correct criminal injustices in the policing of marijuana but also the inequity in ownership. If municipalities insist on keeping the restrictive zoning laws in place, then the money should be used to help establish Black ownership in the legal marijuana market. Methods ranging from the waiver of license and application fees, supplemental payments to invest in properties that fit the zoning model, purchasing or building property to be sold at a lower rate to Black or minority owners, or the idea that each state should help establish banks which deal primarily with marijuana related business and mortgage loans within that state, so there is no issue with federal banking laws.

On top of that, more efforts to erase the country-wide negative stigmas surrounding marijuana prohibition should be made. These order-maintenance social controls and zoning ordinances which are still in place today continue to implicate the prejudicial recognition of marijuana use as a disorder on par with prostitution and vagrancy. The first step should be to remove it from the Schedule 1 drug list and disassociate it with dangerous drugs. States should also step up and remove harmful social consumption laws which police use to target Black and minority communities. Marijuana has long been mislabeled as a terror upon society and as long as these negative stigmas exist, the inequality of its policing and participation in the green economy will continue to exist.

[1] Ezekiel Edwards et al., Am. Civ. Liberties Union, The War on Marijuana in Black and White, (2013), https://www.aclu.org/report/report-war-marijuana-black-and-white, at 7. (America is the single largest consumer of illegal drugs in the world).

[2] Id at 9.

[3] Steven W. Bender, SYMPOSIUM: The Colors of Cannabis: Race and Marijuana, 50 U.C. Davis L. Rev. 689 at 690 (2016).

[4] The War on Marijuana in Black and White, at 9.

[5] Bender at 697.

[6] 57 Stan. L. Rev. 1 (2004-2005).

[7] Id. at 2.

[8] Id. at 3.

[9] Id. at 3-4.

[10] Garnett, 57 Stan. L. Rev. 1 at 24.

[11] Id. at 2.

[12] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/.

[13] Id.

[14] Id.

[15] Id.

[16] Garnett, 57 Stan. L. Rev. 1 at 3.

[17] Id.

[18] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/.

[19] See, George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/. See also, Garnett, 57 Stan. L. Rev. 1 at 7.

[20] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/. “These charges exist not because society wants judges to punish vagrants or drunks but because it wants an officer to have the legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed.”

[21] See, Garnett, 57 Stan. L. Rev. 1 at 7.

[22] See, Powell v. Texas, 392 U.S. 514 (1968).

 

[23] Powell v. Texas, 392 U.S. 514 at 516 (1968).

[24] Id.

[25] Id. at 532.

[26] Garnett, 57 Stan. L. Rev. 1 at 8.

[27] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/.

[28] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/. See, Garnett, 57 Stan. L. Rev. 1 at 9.

[29] Garnett, 57 Stan. L. Rev. 1 at 9 (quoting Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603 at 648 (1956). Stating that “(This system) was an illusory one that permitted the ‘substitution of harassment for the more difficult job of obtaining the evidence necessary to convict criminals … [and] encourage[d] superficial and inefficient police work.

[30] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/.

[31] Garnett, 57 Stan. L. Rev. 1 at 10.

[32] Id. at 3-4.

[33] Id.

[34] Id. at 21.

[35] Id.

[36] Euclid v. Ambler Realty Co., 272 U.S. 365 at 384 (1926).

[37] Id. at 384-385.

[38] See Euclid v. Ambler Realty Co., 272 U.S. 365 at 391 (1926).

[39] Garnett, 57 Stan. L. Rev. 1 at 22.

[40] Id. at 22-23.

[41] Id. at 23.

[42] Id at 22.

[43] Garnett, 57 Stan. L. Rev. 1 at 22 (quoting, Brief of the National Conference on City Planning, the Ohio State Conference on City Planning, the National Housing Association, and the Massachusetts Federation of Town Planning Boards, at 29-30, Euclid v. Ambler Realty Co., 272 U.S. 365 at 384 (1926)).

[44] 31 Hastings Const. L.Q. 447 (2004).

[45] Id. at 448.

[46] Id. at 449 “So cities can zone adult businesses because, for example, they cause a decline in the quality of urban neighborhoods and increase prostitution, but not because a city disapproves of nude dancing as entertainment.”

[47] Bender, 50 U.C. Davis L. Rev. 689 at 690 (2016).

[48] Id.

[49] Id.

[50] Id. 690-691.

[51] Ezekiel Edwards et al., Am Civ. Liberties Union, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, at 11 (2020), https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-marijuana-reform. “As John Ehrlichman, counsel to Nixon and assistant to the president for domestic affairs, said over two decades later, ‘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 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.”

[52] Lea Brilmayer, ARTICLE: A GENERAL THEORY OF PREEMPTION: WITH COMMENTS ON STATE DECRIMINALIZATION OF MARIJUANA, 58 B.C. L. Rev. 895 at 896 (2017).

[53] 21 U.S.C. § 812.

[54] Ezekiel Edwards et al., Am. Civ. Liberties Union, The War on Marijuana in Black and White, (2013), https://www.aclu.org/report/report-war-marijuana-black-and-white.

[55] Id. at 9.

[56] Id. at 21.

[57] Id. at 18. (In the District of Columbia in 2013 the arrest rate for marijuana possession was 8.05 times more for black than it was for whites. In Iowa it was 8.53 times more likely.)

[58] Bender, 50 U.C. Davis L. Rev. 689 at 693 (2016).

[59] Id.

[60] Id.

[61] Brilamayer, 58 B.C. L. Rev. 895 at 897 (2017).

[62] Ezekiel Edwards et al., Am Civ. Liberties Union, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, at 13 (2020), https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-marijuana-reform.

[63] Brilamayer, 58 B.C. L. Rev. 895 at 898 (2017).

[64] Ezekiel Edwards et al., Am. Civ. Liberties Union, The War on Marijuana in Black and White, at 11 (2013), https://www.aclu.org/report/report-war-marijuana-black-and-white.

[65] George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, (March 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/.

[66] Ezekiel Edwards et al., Am Civ. Liberties Union, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, at 11 (2020), https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-marijuana-reform.

[67] Id. at 4.

[68] Id. at 5.

[69] Id. at 70.

[70] Id.

[71] Elizabeth Danquah-Brobby, COMMENT: PRISON FOR YOU. PROFIT FOR ME. SYSTEMIC RACISM EFFECTIVELY BARS BLACKS FROM PARTICIPATION IN NEWLY-LEGAL MARIJUANA INDUSTRY, 46 U. Balt. L. Rev. 523 at 526 (2017).

[72] Id.

[73] Id.

[74] Id.

[75] Cannabis Control Commission, Municipal Zoning Tracker. https://mass-cannabis-control.com/municipaltracker/.

[76] Mass. Gen. Laws ch. 94G § 2(d)(1) (2017).

[77] Kerrie Kennedy, What’s Behind the Racial Ownership Gap?, Boston Agent Magazine, (February 2020), https://bostonagentmagazine.com/2020/02/25/whats-behind-racial-homeownership-gap/.

[78] Id.

[79] See, Garnett, 57 Stan. L. Rev. 1 (2004-2005).

[80] Id.

[81] Alexis Holmes, MARIJUANA SYMPOSIUM: ZONING, RACE, AND MARIJUNANA: THE UNINTENDED CONSEQUENCES OF PROPOSITION 64, 23 Lewis & Clark L. Rev. 939 (2019).

[82] See, Id. at 956. “Removing the cadres of racially biased law enforcement, however, does not guarantee equitable laws.”

[83] Id. at 958.

[84] Id.

[85] Id. at 859.

[86] Garnett, 57 Stan. L. Rev. 1 at 24 (2004-2005).

[87] Baradaran-Robinson, 31 Hastings Const. L.Q. 447 at 448 (2004).

[88] Steven J. Hoffman et al., Mass. Cannabis Control Commission, A Baseline Review and Assessment of the Massachusetts Adult-Use Cannabis Industry: Market Data and Industry Participation, at 35 (February 2020), https://mass-cannabis-control.com/wp-content/uploads/2020/02/Market_Data_and_Industry_Participation_February_2020.pdf.

[89] Id. at 40.

[90] Id. at 32.

[91] Danquah-Brobby, 46 U. Balt. L. Rev. 523 at 534 (2017).

[92] Id. at 537.

[93] Id. at 538

[94] Id. “According to one analysis, in 2011, the average white household wealth was $111,146 and the average black household was $7,113.”

[95] Steven J. Hoffman et al., Mass. Cannabis Control Commission, A Baseline Review and Assessment of the Massachusetts Adult-Use Cannabis Industry: Market Data and Industry Participation, at 48 (February 2020), https://mass-cannabis-control.com/wp-content/uploads/2020/02/Market_Data_and_Industry_Participation_February_2020.pdf.

[96] Holmes, 23 Lewis & Clark L. Rev. 939 at 962 (2019).

 

Michael Patrick Cronin
J.D. Candidate
Suffolk Law School | Class of 2021
President, Real Estate and Trusts & Estates Law Student Association
mcronin@su.suffolk.edu
(860)748-8307