Legalizing marijuana, while vital, is not enough to remedy the harms of decades of War on Drugs policies. Our new report, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, shows that while more states are legalizing or decriminalizing marijuana, high arrest rates and severe racial disparities persist nationally. It’s clear that while legalization is part of the answer, it isn’t enough. 

For truly equitable reform, the ACLU recommends that any legalization efforts center racial justice and include the following components:

• Legalization
• Fair fines and fees
• Resentencing, expungement, and clemency
• Elimination of collateral consequences
• Inclusive legal markets
• Exclusion of arrests in performance measures
• Police reform

All states should legalize marijuana and should prioritize racial justice and equity in reform efforts in order to address the harms that marijuana laws have inflicted upon Black and Brown people for decades. States should also include youth in reform efforts: Youth marijuana use and possession should be legalized, decriminalized, or depenalized; and youth offenses should result in drug education or community service instead of criminal intervention. Any education about the harms of drugs should be rooted in science and facts and not in fear-mongering. 

Legalizing marijuana is an important step toward ending the War on Drugs, but it must include the other recommended reforms to avoid reinforcing the impact of prohibition that communities of color have faced for decades.

States that legalize should forgive outstanding debts for marijuana fines and fees, which have harmed low-income communities and communities of color for decades. While fines are financial punishment for an offense imposed at sentencing, fees are intended for revenue collection. States should thus eliminate any fees in marijuana enforcement, and ensure that any fines are equitable and proportionate according to the individual’s income and severity of the offense. 

Penalties for nonpayment of fines should be limited, and under no circumstances should they result in incarceration, suspension, or revocation of driver’s licenses, disenfranchisement, extension or revocation of probation, parole or any other form of supervision, or additional monetary penalties. Any person with outstanding fines should also be able to proactively request a fine reduction or waiver based on financial circumstances prior to default. 

For model language on fines and fees reform, see Hawaii’s HB 2674 and California’s SB 144.

After legalization, nobody should remain incarcerated for prior marijuana offenses, and nobody should continue to face the harmful collateral consequences of a marijuana conviction on their record. To address these systemic harms, legalization must include processes for clemency, resentencing, and expungement that are speedy, automatic, and free of cost. The categories of offenses eligible for automatic clemency consideration, resentencing, or expungement should include as many people and types of offense as possible. For all those who are not automatically expunged, the process should be as quick and cheap as possible.

The collateral consequences of a marijuana conviction can significantly derail a person’s life, restricting their ability to secure employment, housing, and many public services. Due to racial disparities in marijuana enforcement, these consequences disproportionately impact communities of color. States should ensure that nobody continues to face the collateral consequences of a marijuana conviction, including the following: 

• Denial of public benefits based on marijuana use, arrests, or convictions
• Drug tests for benefit eligibility
• Separation of families in the child welfare system
• Loss of driver’s licenses
• Deportation
• Loss of federal financial aid
• Bans on participation in the marijuana industry for those with drug arrests
• Felony disenfranchisement

People with a marijuana conviction on their record should be able to fully re-integrate into society by accessing the same rights and services as anybody else.

States should ensure that communities of color, small business owners, and people with prior drug convictions can access and benefit from the new legal marijuana marketplace after legalization. The cost of obtaining a license must be reasonable and accessible. States should also provide licensing for marijuana consumption in public spaces so that people who live in public housing or rental units can access legalized spaces instead of continuing to face discriminatory marijuana enforcement after legalization. 

Further, states should use the tax revenue raised by the legal marijuana market for programs working to end collateral harms and for supporting small businesses owned or run by communities directly impacted by the War on Drugs.

Evaluation to receive federal government grants, including the Byrne Justice Assistance Grants (or Byrne JAG), should not include arrest numbers as part of performance measures. When a police department’s arrest numbers are a factor in receiving funding, police are encouraged to increase arrests and to redirect resources toward enforcing low-level offenses instead of promoting public safety and curbing exploitative drug trafficking.

Police departments and municipal government entities should end enforcement of marijuana possession and distribution, as well as a range of other low-level offenses — such as traffic infractions and “quality of life’ offenses — and instead implement non-punitive responses. Aggressive enforcement of low-level offenses unnecessarily funnels hundreds of thousands of people into the criminal legal system — primarily young people of color and particularly Black people. 

Police often stop and search people of color based on explicit and implicit biases instead of substantial evidence of wrongdoing. This is racial profiling. The result is the aggressive enforcement of minor offenses in communities of color. 

Police departments should adopt model racial profiling policies that define the practice of racial profiling, prohibit law enforcement from engaging in it, and make clear that it is unconstitutional under the Fourth Amendment. A further step that courts and state legislatures should take is to raise the level of suspicion required to stop and briefly detain a person against their will.

Local governments should ban the use of consent searches, which are searches made by law enforcement based on the consent of the individual whose person or property is being searched. The practice allows officers to circumvent legal standards that require probable cause in order to conduct most searches. In addition, the environment in which police seek consent is inherently coercive, and these searches are used overwhelmingly against people of color.

Law enforcement agencies and individuals should not be evaluated based on the number of stops, citations, summons, and arrests made. Such measures do not accurately reflect public safety and health, and they encourage police to increase arrests for low-level offenses and ramp up their presence in communities of color in order to meet arrest goals or quotas. As a result, true justice is de-emphasized and communities of color may experience justified frustration toward and distrust of the criminal legal system. 

To evaluate public safety and police efficacy, police departments should instead study the rate of racial disparities in arrests, the resolution of serious crimes, and the number of complaints filed against law enforcement as a measure of community satisfaction.

Police should prioritize accountability and transparency by collecting stop, frisk, search, citation, and arrest data and making it publicly and easily accessible. They must use this data to identify and address racially biased and harmful practices and policies, and to develop strategies and tactics to eliminate racial disparities in enforcement practices. 

Since the 1980s, the amount of money spent on the criminal legal system has dramatically outpaced spending on community services that help build stable, safe communities. Instead, local, state, and federal governments should work with community members to limit the role of police in communities of color and redirect funds toward other services and non-punitive interventions, such as housing, schools, jobs, public health, and violence prevention programs. This way, jurisdictions can appropriately and adequately address economic, health, and social problems at their root in ways that strengthen rather than sabotage impacted communities. 

Municipal, state, and federal government entities should develop external oversight agencies that conduct regular audits and review of police departments’ policies and practices. These agencies could take the form of independent prosecutors, inspectors general, strong community oversight boards, or some combination of the three. Community oversight is important because it ensures the community has autonomy to oversee and hold law enforcement accountable, as is appropriate in a democratic society. 

The data shows that marijuana legalization is a racial justice issue, and states should approach it as such. The harms of marijuana criminalization inflicted upon communities of color cannot be undone. However, states can chart a smarter, fairer future that uplifts and repairs the people and communities most impacted. The path forward is through incorporating these critical reforms into any legalization package. 

For centuries, Americans have taken to the streets when they’ve had grievances to share. We’ve taken to the streets to make our voices heard, to effect change, and to feel and display the power and solidarity of mass gatherings. But with physical distancing and shelter in place orders prevalent throughout the U.S. and the world, how do we responsibly exercise our First Amendment right to protest, which remains as essential as ever?

Undoubtedly, there is a medical imperative to keep ourselves and our neighbors safe, and our hospitals from becoming overwhelmed. At the same time, public debate about urgent political questions — from construction of the Keystone XL pipeline and southern border wall to when and how to reopen the country — remains more vital than ever.

Current physical distancing measures have presented challenges, but people have found some creative ways to make sure their voices are heard. Here are just a few examples:

Keystone XL Pipeline Protests

In Montana, construction of the controversial Keystone XL oil pipeline has begun in earnest after it was declared “essential” by the governor, but public gatherings are prohibited. Community members have long argued that the pipeline will degrade the land and water, and that “man camps” for pipeline workers are a threat to indigenous communities. So, a small group of people — in accordance with the state’s ban on gatherings of more than 10 people — from the Fort Peck Assiniboine and Sioux Reservation gathered for a prayer circle, holding a length of traditional sinew to symbolize their physical distancing while maintaining their social cohesion. Their ribbon skirts and resolve, set against the Big Sky, inspire us to continue to protect the environment and indigenous communities.

https://twitter.com/sharensworld/statuses/1250549592271155201

Student Activism Moves Online

University of California graduate student activists have been mobilized around cost-of-living adjustments (COLA) for months, demonstrating at public events and even going on grading strike on several campuses. Ph.D. candidates tend to have very little income, and students and their families depend on campus resources — many of which are now shut down — to survive. With classes moving online and campuses largely shut down, student activists have shifted their movement online, too, with www.strikeuniversity.org, an innovative platform for sharing their concerns with decision-makers and garnering public support.

Drive-By Protests

Drive-by protests have been used by a variety of movements. While being in a car does not necessarily alleviate all health-related concerns and the degree to which such protests can be safely done may vary, this tactic has the advantage of looking in many ways like a traditional street protest. Officials from Indiana to Los Angeles to Puerto Rico cannot ignore the masses gathered outside their offices.

https://twitter.com/JoeEnglishKATU/statuses/1256301423010037762

Money Talking

Individual spending choices can also be a form of public protest. We have seen people speak out with their wallets in a variety of ways: donating to pandemic relief efforts, giving to friends and neighbors in need, and patronizing local and responsible businesses. In these small ways, we can show what we value and provide assistance to the millions who’ve lost their livelihoods, even as we demand that our government strengthen its safety net. Essential workers, many of whom are often people of color, have made their needs known, and many are joining together to help.

Vote and Be Counted

Voting and filling out the 2020 census are two more ways that people are making their voices heard, and should be possible without risking one’s health. Advocates are working tirelessly to ensure that election processes are as accessible as possible, while also reminding people that everyone can and should fill out the census, because the national headcount will have important implications far beyond the current crisis.

Windows to the World

During the pandemic, windows have become a key forum for expression. In New York City, we scream and clap at 7 p.m. every day to show our appreciation for essential workers. People confined to their homes are also displaying signs of solidarity and beauty with passersby, and people in detention have written pleas for help on their windows. And powerful curbside messages have also been sent using walls and sidewalks.

https://twitter.com/NBCNewYork/statuses/1239409499116646401

The Way Forward

The future of in-person protests remains uncertain, because even as lockdown measures are lifted in the coming weeks and months, physical distancing and bans on large gatherings are likely to persist. We may need to rely on creative means to protest for some time, but we must remain vigilant to ensure that any safety measures governments put in place are temporary and do not outlive their necessity.

History has taught us that people in power have strong incentives to use crises to consolidate power and silence dissent. It is often Black and Brown communities and the most vulnerable who bear the brunt of medical emergencies, as well as law enforcement efforts to implement restrictions on public life.

So, speak out, act up, and exercise your First Amendment right to protest. But be responsible, stay safe, wash your hands, and don’t risk your health and the health of your communities.

We’ll see you back in the streets just as soon as it’s safe to be there.

Emerson Sykes, Staff Attorney, ACLU Speech, Privacy, and Technology Project