Cannabis Policy in Action in DC

Residents within the DC metropolitan area ponder with consistency whether cannabis within the jurisdiction is legal or illegal to purchase and possess. Prior to the 1930s, the vast majority of Americans had never seen or used cannabis, as the drug lacked popularity and was not broadly traded in the country. Through the 1930’s, however, Federal Bureau of Narcotics commissioner Harry J. Anslinger claimed that cannabis “came in from Mexico, and swept across the country with incredible speed” and that “high school students particularly are the prey of the reefer peddlers.”[1] These statements not only capitalized on parental concern for their children, but also on fears of Mexican immigration. Even the term marijuana was deliberately chosen to associate the drug with Mexicans.[2] Anslinger additionally espoused beliefs that cannabis use was associated with degeneracy, which would trigger violent behavior such as rapes and murders. In one particularly racist quote, Anslinger said most cannabis users “are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”[3] It is unsurprising then that the future of cannabis control in America followed on this marginalizing path.

The first major regulatory action against cannabis was the Marihuana Tax Act of 1937. The Act sought to bring cannabis under regulations similar to the Harrison Narcotics Act of 1914, which taxed and regulated the production, importation, and distribution of opiates and coca based products.[4] The Marihuana Tax Act was ruled unconstitutional in 1969 in Leary v. United States due to a violation of the fifth amendment, but was swiftly replaced by the Controlled Substances Act in 1970.[5] The Controlled Substances Act (CSA) created a scheduling system for drugs, where Schedule I substances have no medical value and inflict maximum harm. Although cannabis is broadly recognized as being a relatively safe drug to use, especially in the short term as it cannot directly cause death, it was grouped with heroin as a Schedule I substance. Barbiturates are a Schedule III substance, although they have a dangerously low threshold for toxicity. Because cannabis was not proven to have medical benefits during the passage of the CSA, it was placed as a Schedule I substance. This legislation was followed in 1971 by President Richard Nixon’s declaration that drug abuse was “America’s public enemy number one” and the country must “wage a new, all-out offensive.” This declaration is believed to be the start of the War on Drugs, however these 1970s era policies split resources were much less punitive than what followed because they split resources between policing and public health.

The worst crimes of the War on Drugs started with the Anti-Drug Abuse Act of 1986, passed under President Ronald Reagan. During the 1980s, crack cocaine became more readily available and widely used.[6] Media fervor over “crack babies” and “welfare queens” were rampant, and the death of Len Bias in 1986 from a cocaine overdose were factors used to justify the legislation. The Act included harsh mandatory minimums for cocaine distribution, and even worse penalties for crack, which was predominantly associated with African-Americans. The policy was revisited in 1988, which expanded the use of the death penalty for serious drug-related offenses, imposed new mandatory minimums including a five year mandatory minimum for simple possession of cocaine base, and the eviction of public housing tenants who engage in criminal activity (especially drug possession and distribution).[7] This Anti-Drug Abuse Act had disastrous consequences. While African Americans and white people use drugs at similar rates, the imprisonment rate of Black people for drug charges is almost six times that of the white population.[8] While Black people represent only 12.5% of illicit drug users, they compose 29% of drug related arrests.[9] This has a disastrous effects on communities, not only in terms of housing and employment, but also education. Following the passage of the Anti-Drug Abuse Act of 1986, an upward trend of young Black men enrolling in college between 1980 and 1985 began to reverse. According to a recent study, the probability of a Black man enrolling in college declined by 10% due to the passage of the law.The Anti-Drug Abuse Act of 1986 created a trend of mass incarceration, and the incarcerated population today disproportionately represents racial minorities. This is due in part to unequal policing. Nationwide, Black citizens are three and a half times more likely to be arrested for marijuana possession than a white person.[10]In the District, Black residents are eight times more likely to be arrested for the crime. Arrests for cannabis possession have become increasingly controversial as states pass medical cannabis programs and legalize the substance. States began to legalize cannabis by ballot initiative, as citizens generally believe cannabis is low in harm and is frequently used. When cannabis is legalized in a state, state police cease pursuit of most small cannabis related crimes, however federal law still prohibits the substance. Thus, if a person in Colorado where the drug is legal is arrested by a DEA agent, they will be arrested with a federal crime. The federal government has generally allowed states to legalize cannabis and has not issued arrests for people involved in state programs. Several states implemented medical programs in the 1990s, which allowed legal purchase of cannabis for patients who meet state regulated guidelines and have a recognized medical need.[11] In 2012, Colorado and Washington voted to legalize cannabis for the first time.[12] Currently, ten states and the District of Columbia have legalized cannabis possession, and 23 other states have legalized medical cannabis.

In November 2014, constituents of DC voted in favor of the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative, or Initiative 71.[13] Initiative 71 made it legal on non-federally owned property to possess two ounces or less of marijuana; give one ounce or less of marijuana to another person who is at least 21 years old, so long as there is no payment made or any other type of exchange of goods or services; cultivate within their residence up to six marijuana plants; possess marijuana-related drug paraphernalia that is associated with one ounce or less of marijuana; and use marijuana on private property.Because I-71 does not permit the sale of cannabis, the legislation led to the creation of a gray market, where DC recreational cannabis does not travel through authorized growers, processors, or dispensaries. Although Initiative 71 permits the transfer of cannabis “so long as there is no payment made or any other type of exchange of goods or services,” vendors have slightly challenged this provision. Pop-Up events are popular in DC where a number of vendors will sell an item such as a T-shirt, sticker, or playing card, with the added gift of a certain amount of marijuana in a type of marketplace. Some vendors believe that this is a work around to DC law, but police are not convinced.[14] In March 2018, Lieutenant Andy Struhar of the D.C. police narcotics unit told the Washington Post, “it’s plainly obvious they’re negotiating for marijuana sales,” but added that DC police do not seek out the cannabis markets unless they receive a complaint. Vendors arrested at these markets can be charged with misdemeanor drug possession with intent to distribute, but the charges are often dropped in court. DC’s cannabis industry exists in a quasi-legal state, and leaves cannabis vendors liable to criminal charges. In these ways, federal drug policy inhibits the creation of a regulated recreational cannabis market in DC, leading to a gray market in which cannabis possession is permissible, but actual sale is still a criminal action.

End Notes:

[1] Harry Anslinger, “Marijuana: Assassin of Youth,” The American Magazine, Vol. 124, No. 1 (July 1937), accessed May 20, 2019, www.druglibrary.org/schaffer/history/e1930/mjassassinrd.htm.

[2]“The Mysterious History of ‘Marijuana,’” Matt Thompson, Code Switch: Word Watch, aired July 22, 2013, on NPR, accessed May 20, 2019, https://www.npr.org/sections/codeswitch/2013/07/14/201981025/the-mysterious-history-of-marijuana.[3]Nick Wing, “Marijuana Prohibition Was Racist from the Start,” Huffington Post, January 25, 2014, accessed May 20, 2019, https://www.huffpost.com/entry/marijuana-prohibition-racist_n_4590190?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAG5QoYD74avjEGX0nidRZu67MyDEsNZix_fAwYdpmyAzJekgV7_64TKytDYkSl14FvloQ1ZGBPxRqekFejv_sxI-2jBHN4v6TSqfmdZDCW0L6hdHMNDlNC30zbK94ffKhnhxWo58U56mSHPSpmb0bVtYXiouEGNOj6dcLDJy9dZK.

[4]Arnold H. Taylor,American Diplomacy and the Narcotics Traffic, 1900-1939: A Study in International Humanitarian Reform(Durham: Duke University Press, 1969), 132.

[5]Mathew R. Pembleton, Containing Addiction: The Federal Bureau of Narcotics and the Origins of America’s Drug War(Amherst and Boston: University of Massachusetts Press, 2017), 286-287. [6]Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness(New York: The New Press), 52-54.

[7]Alexander, The New Jim Crow, 145.

[8]“Criminal Justice Facts,” NAACP, accessed May 20, 2019, https://www.naacp.org/criminal-justice-fact-sheet/.

[9]“The Drug War, Mass Incarceration and Race,” Drug Policy Alliance, January 2018, accessed May 20, 2019, http://www.drugpolicy.org/sites/default/files/drug-war-mass-incarceration-and-race_01_18_0.pdf.

[10]Dylan Matthews, “The Black/White Marijuana Arrest Gap, in Nine Charts,” The Washington Post, June 4, 2013, accessed April 23, 2019, https://www.washingtonpost.com/news/wonk/wp/2013/06/04/the-blackwhite-marijuana-arrest-gap-in-nine-charts/?utm_term=.cdbdb0d04898.

[11]When referring to “legal” cannabis, I am referring solely to the legality in an individual state. Cannabis is not federally legal, and there are no true legal cannabis programs in the United States with that in mind.

[12]“Marijuana Overview,” National Conference of State Legislatures, May 17, 2019, accessed May 21, 2019, http://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx.

[13]“The Facts on DC Marijuana Laws,” The Metropolitan Police of the District of Columbia, accessed April 22, 2019, https://mpdc.dc.gov/marijuana.

[14]Tauhid Chappell and Tom Jackman, “In the Murky World of D.C. Marijuana Law, Pop-Up Markets Thrive,” The Washington Post, March 26, 2018, accessed April 22, 2019, https://www.washingtonpost.com/local/public-safety/in-the-murky-world-of-dc-marijuana-law-pop-up-markets-thrive/2018/03/26/84b9b2c6-2967-11e8-b79d-f3d931db7f68_story.html?utm_term=.122c0a04e265.