The Harm of Marijuana Prohibition

ACLU-PA’s Terrell Thomas (left) and Andy Hoover at last week’s In the Weeds event in Pittsburgh.

By Terrell Thomas and Andy Hoover

The criminalization of marijuana has unnecessarily created a lot of harm, particularly to people of color. That statement may seem obvious. But it was the message that we felt compelled to hammer at an event we attended last week with a few dozen policymakers, students, researchers, scientists, and reporters in Pittsburgh.

Titled “In the Weeds,” the event was a half-day symposium sponsored by the watchdog news outlet The Caucus that featured a keynote address by Lt. Governor John Fetterman and several panel discussions on the legal, financial, medical, and policy implications of our current marijuana laws and the many proposals to change them. We participated in a panel on the legal and financial angle with several attorneys and a state representative from Franklin County.

The harm of prohibition is real. Every year in Pennsylvania, more than 20,000 people are arrested for possession of marijuana, and the racial disparities in those arrests are significant – a Black person is nearly four times more likely to be arrested for possession in Pennsylvania than a white person. Meanwhile, surveys consistently show that marijuana use is virtually the same among people of different races.

Consider Pittsburgh, where last week’s event was held. In 2018, there were 735 arrests for marijuana possession, according to data from Pennsylvania’s Uniform Crime Report. Black people were the subjects of 549 of those arrests. An astonishing 75 percent of people arrested for marijuana possession in Pittsburgh last year were African-American, in a city that is 25 percent Black. 

There were 135 arrests of white people for marijuana possession last year in Pittsburgh. We can assure you that you can find more than 135 white people consuming cannabis on any Saturday night in Oakland or the South Side. Not that we’re advocating for their arrest, of course. But the point is that the arrest rate is so skewed because Black people are the targets of selective policing in Pittsburgh.

And the reverberations of those arrests are significant. Law enforcement officials and cannabis reform advocates say that it is rare for a person to be sentenced to jail time for marijuana possession. And while that may be true, there are still collateral consequences from that arrest.

That sentence for marijuana possession might not include jail time, but it might include certain fines and fees. Over the last three years, the ACLU of Pennsylvania has been investigating counties’ practices of adjudicating failure to pay fines and fees, and we’ve found that many counties have no fair process for determining if a person is able to pay what they owe. Every year, thousands of Pennsylvanians are incarcerated because they are too poor to pay the fines and fees they owe.

After your marijuana possession conviction, you might need a job or to hang on to the one you have. But you have that arrest and conviction record, and Pennsylvania’s expungement and sealing laws force you to wait years before you can remove that record from public sight. Some employers might not care, but some might. Now your employment options are narrower.

But perhaps the most damning way that marijuana prohibition feeds the mass incarceration beast is through the probation and parole systems. On any given day in Pennsylvania, there are as many as 300,000 people on probation or parole, which are systems of government surveillance and control. A positive test for marijuana can send a person under supervision to jail or prison. They can otherwise be following the terms of their supervision to the letter, but that positive test sends them behind bars. And if they’re on probation, they sit in jail indefinitely on what’s known as a probation detainer, as their case is being processed by the court.

(Learn more about probation and parole at SmartJusticePA.org.) 

Why are we doing this? At the symposium last week, state Representative Paul Schemel, a Republican from Franklin County, argued against legalization by saying that the only reason for legalizing recreational marijuana is so people can get “stoned.” Patrick Nightingale, a local attorney and marijuana reform advocate with NORML’s Pittsburgh chapter, had a very succinct response: So what? Right after that panel, all of us could have gone down to the hotel bar and gotten loaded on alcohol. As long as we don’t hurt anyone, it would be totally legal. Why is it the government’s business if people want to relax with recreational cannabis?

We’re probably years away from full blown legalization of cannabis in Pennsylvania. But the need to disconnect the criminal legal system from cannabis consumption is urgent. We have to get police out of the business of marijuana prohibition.

Terrell Thomas is the senior field organizer for ACLU-PA’s Campaign for Smart Justice. Andy Hoover is ACLU-PA’s director of communications.

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