Excerpted From: Steven W. Bender, Racial Justice and Marijuana, 59 California Western Law Review 223 (Spring, 2023) (122 Footnotes) (Full Document)

StevenBender.jpegSince the advent of the wave of state legalizations of recreational marijuana in 2012, scholars have addressed its racial justice implications. Early on, the shortcomings of the initial legalization measures in failing to address the expungement of previous criminal convictions for possession were highlighted. Obstacles to licensing, such as financial obstacles, ensured that newly legal businesses of growing and selling recreational marijuana would be predominantly white-owned and operated. Although states have made some progress on these fronts in recent years, these shortcomings and obstacles are still the low-hanging fruit of racial justice reform.

Here, this Article aims higher in the tree of racial justice. First, this Article identifies the goal of racial justice, and how attainment can be measured. Second, this Article addresses how, if at all, the current legalization approaches for recreational marijuana measure up to the goal of racial justice. Finally, this Article tackles what is needed to achieve the goal--which remains unmet under current law--and how to overcome the weighty legal and societal impediments to deliver meaningful racial justice. In short, marijuana's initial criminalization was steeped in racism. However, its legalization offers the opportunity to both redress the harm that criminalization imposed on minority communities, and provide a remedial model for undoing the much broader framework of systemic injustice that existed before marijuana's criminalization. In the same way that criminalization of marijuana was one of the tools of racial control, legalization of marijuana can be a tool toward an anti-subordination future.

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Justice requires apology and monetary payments to all victims of [injustice]. And even if we do apologize, and do pay, it will not be enough. Reparation is a process, not an end. - Mari J. Matsuda

As transformative in theory as reparations seem, they fall short. Even assuming they are paid in more than a few local laboratories of social/racial justice, they carry a built-in flaw--they may compensate for some of the past harm, but fail to account for future harm. Using the Evanston example, reparations may help a few Black families with the down payment needed to buy a home, with their mortgage payments for several months, or enable repairs for a home they already own--but do not account for tomorrow. Reparations payments will not account for the next repairs, the next payments, or--in the case of a new home purchase--the first home payments due under the purchase mortgage loan. In the same way that stagnant and inadequate wages were a prescription for disaster with exotic, subprime mortgages trying to bridge the affordability and qualification gap, a lack of income, job stability, and intergenerational wealth imperils the meaningful equality of reparations recipients going forward. Rather, the payment of reparations may be seen as having solved the problem, and in fact might have solved the wrong problem. Critical scholar Natsu Saito suggests the limits of reparations that treat injustice as an aberration capable of being compensated, rather than as something structural and ongoing. She invites us to envision social and legal structures less likely to reproduce the same wrongs that reparations seek to address. Reparations, despite being amelioratory, must be part of a larger, ongoing transformative process: a process to transform the criminal justice system and all the related systems to point toward equality in outcomes for racial groups.

By 2030, the market value of the U.S. cannabis industry, despite its limited legality, is expected to reach $72 billion. Although this seems staggering for a single plant and brims with reparative opportunity to fund social and racial justice initiatives, consider that on the housing front alone, the U.S. housing stock is worth some $43.4 trillion dollars. Regardless of the disparity in value, race consciousness repair at the state and local level can build momentum for federal reform that both legalizes--but also uses--marijuana revenue as a model to fund progress toward the material equality of an anti-subordination future.

Professor of Law and Associate Dean for Planning and Strategic Initiatives, Seattle University School of Law.