Decriminalizing Small Quantities of Marijuana

D.C.’s newest law isn’t about the freedom to light up. It’s about combating racial profiling and protecting civil rights.

Seema Sadanandan serves as the Program Director at the ACLU of the Nation's Capital.    
National Journal
Seema Sadanandan
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Seema Sadanandan
March 27, 2014, 12:35 a.m.

Earli­er this month, the City Coun­cil of the Dis­trict of Columbia passed the first marijuana re­form in the coun­try aimed ex­pli­citly at tak­ing “marijuana odor” out of the ar­sen­al of poli­cing tools that pro­mote ra­cial pro­fil­ing.

The pub­lic and the coun­cil were gal­van­ized by a shared vis­ion for ra­cial justice — a new de­vel­op­ment in the de­bate over marijuana law re­form, which used to cen­ter on pro­tect­ing the per­son­al liberty to smoke marijuana.

In 2013, the Amer­ic­an Civil Liber­ties Uni­on of the Na­tion’s Cap­it­al re­ceived dozens of re­ports of ra­cial-pro­fil­ing in­cid­ents by the Met­ro­pol­it­an Po­lice De­part­ment. In a large num­ber of these cases, com­munity mem­bers re­por­ted that of­ficers stopped, ques­tioned, and searched black res­id­ents based on the al­leged smell of marijuana, yet found no il­leg­al activ­ity dur­ing the searches.

To un­der­stand what was go­ing on, we stud­ied all marijuana-re­lated in­cid­ents in the Dis­trict that res­ul­ted in an ar­rest, us­ing data from 2010, the most re­cent avail­able. The res­ults were stag­ger­ing: 91 per­cent of all ar­rests for marijuana-re­lated of­fenses were of blacks, des­pite re­search find­ings that black and white people use marijuana at nearly equal rates.

Be­cause the po­lice de­part­ment does not keep re­cords of every stop that does not res­ult in an ar­rest, we can’t meas­ure the ra­cial break­down of marijuana odor-based stops. However, an­ec­dot­al evid­ence from com­munity mem­bers sug­gests that it is far more likely for a black per­son to be sub­jec­ted to a stop in which po­lice use the al­leged odor of marijuana as a pre­text to con­duct a search and gen­er­al crim­in­al in­vest­ig­a­tion.

Last sum­mer we re­leased a re­port de­tail­ing the se­lect­ive en­force­ment of the Dis­trict’s marijuana laws. After months of high-pro­file pub­lic de­bate about the mean­ing of such dis­par­it­ies, last week the D.C. Coun­cil moved to make small-scale marijuana pos­ses­sion of one ounce or less a civil of­fense, re­mov­ing crim­in­al pen­al­ties. Elec­ted of­fi­cials hope to re­duce the num­ber of hu­mi­li­at­ing and cor­ros­ive en­coun­ters between the Dis­trict’s black res­id­ents and the po­lice de­part­ment.

When you think of the im­pact of marijuana laws, you may ima­gine someone smoking marijuana in pub­lic space. But in early 2013, I spoke with D.C. high school stu­dents as part of a Know Your Rights pub­lic-edu­ca­tion cam­paign, and their ex­per­i­ences tell a dif­fer­ent story. Across neigh­bor­hoods, young black res­id­ents echoed the same theme.

A 16-year-old boy was stopped on his way home from school for look­ing sus­pi­cious. Po­lice ac­cused him of smelling like marijuana. He was ques­tioned and searched.

Two high-school girls lingered on a side street with their friends on their way home from school. Of­ficers ap­proached and claimed to smell marijuana. The girls were ordered to empty their purses and pock­ets.

A 14-year-old boy was wait­ing at a bus stop on his way home from school. An of­ficer walked up to him and stood close, al­leging that he could smell marijuana em­an­at­ing from the boy’s dread­locks.

None of these teen­agers was ar­res­ted, be­cause the searches of their per­son and pos­ses­sions yiel­ded noth­ing il­leg­al.

We re­ceived many sim­il­ar re­ports of po­lice us­ing marijuana odor as the pre­text for a search. The en­coun­ters rarely end in ar­rest be­cause, ac­cord­ing to the sub­jects of the stops, there was nev­er any marijuana to be­gin with.

In oth­er cases, when the stop, search, and ques­tion­ing does pro­duce evid­ence of marijuana, the im­pact of an ar­rest for even a small amount of marijuana can be dev­ast­at­ing.

A 22-year-old black man was charged with a mis­de­mean­or marijuana pos­ses­sion be­cause he had one joint in his pock­et. Now he car­ries a mis­de­mean­or con­vic­tion on his re­cord that will in­hib­it his abil­ity to seek em­ploy­ment, re­ceive fin­an­cial aid, and live in pub­lic hous­ing. He rep­res­ents one of thou­sands in the Dis­trict, a crim­in­al­ized pop­u­la­tion of black and brown people liv­ing un­der a con­stant threat of ra­cially dis­par­ate poli­cing and its lifelong con­sequences.

Mean­while, in the north­w­est sec­tion of the Dis­trict that is home to four ma­jor uni­versit­ies, where self-re­por­ted marijuana us­age rates top most oth­er parts of the coun­try, there are vir­tu­ally no ar­rests and marijuana searches are a dis­tant real­ity. How could the dis­par­it­ies be so ex­treme?

The po­lice chief was called to ac­count, and re­spon­ded to our data with a pub­lic state­ment that did not chal­lenge the con­clu­sion that in the Dis­trict marijuana en­force­ment is wildly ra­cially dis­par­ate.

The pub­lic and the coun­cil con­tin­ued to press for re­form, in loc­al me­dia and at com­munity meet­ings. Nearly six months after the re­lease of the ACLU re­port, a Janu­ary 2014 Wash­ing­ton Post poll showed a dra­mat­ic shift in pub­lic sup­port for leg­al­iz­ing marijuana. Four years ago, Dis­trict res­id­ents were split evenly on the is­sue; in Janu­ary 2014, they favored leg­al sales of marijuana for per­son­al use by al­most 2-to-1.

The Small Pos­ses­sions Act of 2013 was passed by a su­per­ma­jor­ity of the D.C. Coun­cil. It re­duces the pen­alty for pos­ses­sion of an ounce or less of marijuana to a $25 fine. And it is the first de­crim­in­al­iz­a­tion bill in the coun­try to pro­hib­it po­lice from stop­ping, ques­tion­ing, and search­ing people based on the al­leged smell of marijuana alone, a long-over­due move to­ward ra­cial justice in the na­tion’s cap­it­al.

It is a ne­ces­sary first step to shift the leg­al found­a­tions of po­lice in­ter­ac­tions with res­id­ents so that law en­force­ment in black neigh­bor­hoods can start to re­semble trust-based com­munity poli­cing, turn­ing firmly away from the failed policies of the war on drugs.

Ul­ti­mately, this shift will re­quire us to ad­dress the ways in which fed­er­al grants cre­ate mon­et­ary in­cent­ives for po­lice de­part­ments to make large num­bers of drug ar­rests. They ef­fect­ively serve as en­tice­ments or in­cent­ives to fo­cus on en­force­ment of marijuana laws with their high-ar­rest pay­offs, with dis­astrously ra­cially dis­par­ate res­ults.

The D.C. bill and the ac­com­pa­ny­ing rise in pub­lic sup­port has trans­formed our marijuana de­bate in­to a con­ver­sa­tion about justice for our en­tire com­munity as we move closer to smart, fair, and com­pas­sion­ate drug policy. Let’s hope it spreads.

Seema Sadanandan, is the pro­gram dir­ect­or with the ACLU of the Na­tion’s Cap­it­al.

HAVE AN OPIN­ION ON POLICY AND CHAN­GING DEMO­GRAPH­ICS? The Next Amer­ica wel­comes op-ed pieces that ex­plore the polit­ic­al, eco­nom­ic, and so­cial im­pacts of the pro­found ra­cial and cul­tur­al changes fa­cing our na­tion, par­tic­u­larly rel­ev­ant to edu­ca­tion, eco­nomy, the work­force and health. Email Jan­ell Ross at jross@na­tion­al­journ­al.com. Please fol­low us on Twit­ter and Face­book.

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