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The Arc of Legal Weed Bends Toward Injustice

In a rapidly evolving pro-pot landscape, how will cities rectify the extreme racial disparities in drug sentencing, and legislate an equitable marijuana marketplace?

Story by Tana Ganeva

Illustrations by Eleanor Barba

Published on May 6, 2019

On Wednesdays, 67-year-old Michael Thompson gathered other inmates at the Michigan State Penitentiary to talk about his life, giving the younger guys advice. He told them about what it was like to get a phone call in prison informing him that his only son had died. That his mother had passed away. He went to her funeral in handcuffs. Her final wish, shared with his nephew, a Michigan state Congressman, was that Thompson wouldn’t die in prison.

I’ve been working with the gangs here. I was telling young guys, wash your heart before you do anything, your heart is polluted,” Thompson says. “If you could have just been there to watch it. Guys actually cry inside those workshops.”

Thompson is serving 40 to 60 years for selling 3 pounds of weed to the manager of a car muffler shop in Flint, Michigan, in 1994, who turned out to be a police informant. He’s spent 25 years in prison already. Although the long sentence stems from additional charges detectives stacked after finding several guns on his property (including an antique rifle), the underlying crime was a nonviolent marijuana sale.

Michigan legalized marijuana in December 2018, allowing adults over 21 to possess, consume or give other adults up to 2.5 ounces or grow or process up to 12 plants. Once a regulatory framework for sales is in place, cities across the state are likely to develop thriving marijuana markets. In Michigan, according to the new law, pot establishments can be charged up to $5,000 a year to cover law enforcement costs and municipalities can apply a 10 percent excise tax on sales, with the money going toward education, infrastructure and research on marijuana’s medicinal properties. In other words, multiple parties — from law enforcement to retailers to the public — are positioned to benefit.

Widespread legalization appears inevitable. The Trump administration isn’t likely to start hassling legal pot businesses. Whoever succeeds Trump in 2020 or 2024 probably will not crack down on marijuana either. Senator Kamala Harris, a former prosecutor, has boasted about smoking weed (while listening to Tupac, no less). In April, she tweeted that any legal push must be accompanied by the expungement of records for nonviolent marijuana-related offenses “from the records of the millions of people who have been arrested and incarcerated, so they can get on with their lives.” Cory Booker has sponsored legislation to legalize pot at the federal level. In March, the New York Times observed that marijuana legalization, accompanied by criminal justice reform, has become a litmus test for Democrats. Beto O’Rourke is pro-legalization, despite carving out a more centrist position on other issues. Joe Biden’s past record being “tough on crime,” including drug crimes, is seen as one of his biggest liabilities, the Times noted. “A Democrat who is not on board with legalization, or addressing it in terms of repairing harms brought by prohibition for decades, is going to have a tough time convincing any voter they’re serious about racial justice,” Vincent M. Southerland, executive director of the Center on Race, Inequality and the Law at New York University Law School, told the Times.

As legal marijuana markets emerge in state after state and Democratic lawmakers race to outdo each other with their pro-pot cred, establishing equity benchmarks in the industry becomes paramount. How will people of color gain a foothold in and benefit from the legal-weed economy? Some states that have legalized are working to seal or expunge prior marijuana convictions, a barrier that has kept many would-be entrepreneurs out of the marketplace.

But even as the legalization discourse shifts to include criminal justice reform, there are limits to what that looks like on the ground. Disturbing questions persist about prisoners such as Thompson, who remain incarcerated with disproportionately long sentences for using or selling pot in the past. Permissive “420” culture hasn’t cut everyone the same slack, and perhaps unsurprisingly, extreme injustices in drug sentencing continue across the country. According to a 2008 report in the American Journal of Public Health, African Americans and whites use illicit drugs at roughly the same rates, but African-American men are imprisoned at a rate 13 times higher than that of white men for drug offenses. This is, after all, a country home to only 5 percent of the world’s population, where a prison-industrial complex harbors 25 percent of the world’s incarcerated people. The marijuana landscape is changing fast. But the scars of prohibition run so deep, especially in communities of color, that a truly equitable marijuana industry can be difficult to construct.

Michael Thompson.

Michael Thompson: Legal for Whom?

People are still getting arrested and jailed for possession, small sales, or breaking the rules in highly regulated legal markets. In 2016, NPR found that even as legal marijuana markets thrived in Colorado, arrests for black and brown teens rose dramatically. Overall, pot arrests increased or stayed the same between 2014 and 2016. When large states such as California legalize, arrests for pot offenses seem to plummet nationally. But what happens in San Francisco may not have much bearing on, say, Little Rock, Arkansas, where the city board of directors recently voted down an ordinance that would direct the police department to de-prioritize pot possession arrests. Between 2014 and 2016, pot arrests in Arkansas increased 30 percent.

And there are hundreds of people who may have served their time already but still have criminal records that make it difficult to find a job, get a scholarship, or access public benefits. Yet, other people — often white, wealthy people — are making millions off the same plant that put Thompson in prison for more than two decades and continues to ruin countless lives by entangling young people of color in the criminal justice system. According to the FBI’s latest Uniform Crime Report from 2018, states where marijuana is legal have seen a drop in pot arrests. But overall, marijuana arrests jumped 0.98 percent to 659,700 in 2017, up from 653,249 in 2016.

Thompson, whose case demonstrates the complexity of expungement, feels that he has paid his debt to society and wants to know what he can do to prove that he’s not a menace who deserves to die in prison.

“What do I have to do?” Thompson asks me over the phone from Flint. “If I knew, I’d do it. But I don’t know what else to do that I have not done,” he says, pointing to his clean record and the fact that his original crime was nonviolent.

“Yes, legalizing marijuana was a good thing, many millionaires will be made through marijuana business,” he says. “In addition, millions of sick people will be helped by this legalization. However, I am still here serving a 40 to 60 years sentence, I will continue to pray that someone will step up soon and put an end to this nightmare of politics that has been keeping me incarcerated.”

My father’s gone. My mother’s gone,” Thompson says. “I can help society much more than I can in prison. I can give much more. I have a lot to offer society,” he says. “I don’t understand.”

The Clean Slate Club

The good news is that jurisdictions around the country are pursuing concrete ways to facilitate expungement and retroactive sentencing. Progressive cities in progressive states have led the way on reducing sentences, lowering charges from felonies to misdemeanors, and establishing systems to dismiss records of pot crimes.

At the end of March, the New York City Council passed resolutions to expunge records for all misdemeanor pot convictions in the city. The Council also pressured the State Legislature to pass legislation to legalize, regulate and tax marijuana.

“Not too long ago this wasn’t really a part of the conversation,” says Rodney Holcombe, an attorney with the Drug Policy Alliance. “Now we’re legalizing at a rapid rate, it’s not a matter of if but when pot becomes legal, so the criminal justice component is picking up quite a bit of steam.”

After passing Prop. 64, California has spearheaded efforts to expunge pot-related convictions. Denver’s Mayor’s office announced that 10,000 convictions for low-level pot crimes are eligible for expungement. In Vermont, where a marijuana arrest from decades ago can deny someone the right to go to neighboring Canada, where pot is legal, aid groups hold expungement days to help people overturn convictions or seal criminal records.

But, the petition process has been problematic, in California and elsewhere. “Lots of folks aren’t taking advantage of it because it’s a costly, difficult process,” Holcombe says. He estimates that after prop 64 passed, only 5 percent of people petitioned for relief. “Again, the process is very confusing.”

Further lack of clarity exists around the various legal means to eliminate an arrest record, because those means and the terminologies differ based on the jurisdiction. “The definitions vary by state, and each remedy offers different benefits, even among states that use the same [terminology],” Holcombe says. “In lots of cases, [the common terms] are used interchangeably.”

Unlike California, New York State offers record sealing, but not expungement. “With record expungement, the conviction on someone’s record is removed in its entirety. It’s like it never happened,” says Cristina Buccola, a lawyer and pro-legalization activist.

With record sealing, which is available in New York, most third parties can’t access a person’s record — but many can, including law enforcement parties such as probation officers or future employers (if, for example, the person is applying for a job that might entail carrying a gun). A conviction might be vacated if an individual can prove that prosecutors knowingly presented false evidence, or if the court lacked jurisdiction in the case. Needless to say, this isn’t common.

In March, San Francisco became the first city to use an algorithm to automatically sort through and throw out thousands of convictions. The District Attorney’s office partnered with Code for America, a tech nonprofit that works to make government more efficient through technology.

Code for America launched Clear My Record in 2016, to facilitate the application process. “We knew California’s record process wasn’t designed for the digital age,” Alia Toran-Burrell, Senior Program Manager for Clear My Record, tells Next City. “The petition process really doesn’t work for people. It’s cumbersome and confusing. It’s hard to access. We thought, what can we do to use technology to reimagine the system for people impacted by the law?”

At first, they helped connect more than 10,000 people with attorneys. But then they wondered, why make people have to apply at all? Why not just automate the process?

“Applying is a hard thing. There’s a better way,” Toran-Burrell says. “Jump forward to today, criminal records can be used to determine eligibility in just a few minutes. The government is doing it automatically. It’s tech and policy working hand in hand to streamline the process so that we can do it at scale.”

San Francisco was the first city to partner with Clear My Record. In February, the D.A.’s office announced they would clear more than 9,000 records dating back to 1975.

“It was the morally right thing to do,” San Francisco District Attorney George Gascón told the Los Angeles Times. “If you have a felony conviction, you are automatically excluded in so many ways from participating in your community.”

Assistant District Attorney Alex Bastian worked on the project in Gascón’s office. He’s proud that their collaboration with Clear My Record not only will lead to thousands of records being cleared, but to the creation of a model that can now be applied to other cities. “It’s like a paper prison,” Bastian tells Next City, about the records that can follow people around for a lifetime. “It results in you not being able to fully rejoin society.”

He notes that very few people were taking advantage of expungement after the passage of Prop 64.

“The D.A., after Prop 64 passed, wanted to know how many people have actually applied for expungement,” Bastian says. “In San Francisco, only 23 people had actually gained relief under Prop 64. So that was something that he really felt mandated … required him to take the unprecedented step to be the first county in the country expunging and reclassifying marijuana convictions.”

It wasn’t easy at first.

“It took a little bit of time to figure out how to make it all work with our data systems and all that,” Bastian says. “But 13 months after the fact and 5 months earlier than the original timeline, the process had been completed, and over 9,300 cases [have been] expunged.”

Bastian is also excited that San Francisco’s success has led other cities to seek their advice. “We’ve gotten calls from New Jersey — Jersey City and Newark. Calls from places that already have recreational marijuana and want to do what we’re doing. Seattle, Denver, up and down the state of California. Canada. It’s just been a very interesting process. It’s a historic step and I think history is going to be very kind to Gascón.”

Toran-Burrell is excited to scale Clear My Record to other cities in California, and eventually cities in other states as they pass legalization measures. “We care about re-imagining government systems to work better. Contact with the criminal justice system shouldn’t be a barrier for people who already face so many barriers,” Toran-Burrell says.

At this writing, Clear My Record has partnered with four California counties to conduct record clearances for convictions eligible pursuant to Proposition 64. Approximately 13,000 convictions are eligible in Sacramento and San Francisco Counties, and another approximately 54,000 convictions are eligible in San Joaquin and Los Angeles Counties. The group has a goal to help clear 250,000 eligible convictions by the end of the year.

In late April, Ben & Jerry’s announced a partnership with Caliva and Eaze — two legal California pot dispensaries — to raise money for Clear My Record. On April 20, Californians over 21 with a valid ID who ordered pot from Caliva would get a pint of “Half Baked” ice cream with their order. For each delivery order placed on that day, Caliva donated 4.2 percent and Eaze donated $4.20 to Clear My Record.

“Legalization without justice is half-baked,” Ben & Jerry’s joked in promotional materials about the event.

Anthony Posada.

Anthony Posada: The Needless Trauma of Stop and Frisk

Legalization tied to social and racial justice has become part of the conversation in other states and cities, but building an equitable marijuana industry that truly makes up for the evils of prohibition isn’t easy.

Anthony Posada will never forget the time in 2003 when an NYPD detective stuck a gun in his face and demanded he shake out his pockets. He was 17, living in Queens, in his senior year in high school. Having small amounts of marijuana had not been a criminal offense in New York City since 1977. It was not supposed to send him to jail.

But having marijuana in public view is an arrestable offense, a loophole the NYPD often exploited to bust people in black and brown neighborhoods. Thanks to Michael Bloomberg’s stop-and-frisk policy — reportedly designed to get firearms off the streets — officers could easily shake down teens, make them empty their pockets, and arrest them for “having marijuana in public view.” Posada says the detective drew a gun on him, made him take out the weed in his pocket, and hauled him to jail.

Beat cops see a number of advantages in busting teens for pot, enough that they might find it difficult to relinquish the practice, regardless of what the law says.

“They give ordinary cops overtime pay,” Harry Levine, a professor of sociology at the City University of New York, told The Intercept. “The police department also channels it into places where they want cops to go. And, they’re easy arrests to make — teens aren’t dangerous or threatening. After all, cops want to get home at the end of the day. A teen with marijuana, there’s not a lot of chance of getting shot or stabbed. Furthermore, teens are probably unlikely to have AIDS, HIV, or hepatitis,” Levine noted. “Unlike drunks or junkies, they’re not going to throw up in the police cruiser. And there’s only some people police can arrest with impunity.”

Posada was one of them. His arrest delayed his college plans when he couldn’t apply for financial aid. Then there was the trauma of his experience.

“I was put in a large van, a paddy wagon, taken on a drive through Queens while they were arresting other people. I was fingerprinted and languished at the police station for a few hours. I was taken to central booking and I spent the night there. I didn’t comprehend what was happening,” Posada says. Today, he’s a lawyer for The Legal Aid Society. But back then, he was a terrified teenager with no idea of how his arrest and record would affect his future.

“On a psychological level, the trauma was something that took me a long long time to overcome. Having a gun pointed at my face. The powerlessness … something occurred to me in a very unjust way … I felt completely violated.”

“I was close to wrapping up high school, ready for college. I couldn’t put in my financial aid application for a year,” he says.

New York’s Uneven Momentum Toward Legalization and Expungement

More than a decade after Posada’s experience, New York State and New York City appear poised to drastically switch gears. As recently as 2017, New York Governor Andrew Cuomo called marijuana a “gateway drug.” But perhaps spooked by a primary challenge on the left by the actress Cynthia Nixon, he’s since embraced legalization.

And, rhetorically, at least, Cuomo is tying legalization to racial justice. In January, the Governor emphasized that he wanted communities of color to get a fair shake.

We have to [legalize] in a way that creates an economic opportunity for poor communities and people who paid the price and not for rich corporations who are going to come in to make a buck,” Cuomo said in a speech.

A few days after Cuomo announced that legal marijuana would be a large part of his 2019 agenda, New York City Mayor Bill de Blasio also came out in support of legalization. “I have been convinced that we can establish a regulatory framework that keeps our streets safe, rights the wrongs of the past, and gives economic opportunity to communities hit hardest by the war on drugs,” de Blasio said in a statement to The New York Times.

Legalization must occur at the state level, but city officials hope to influence the process. They issued a lengthy report of recommendations in December 2018 that included automatic expungement, in addition to passing the City Council resolutions in March that called for expungement and legalization/regulation.

But despite support from Cuomo and de Blasio, the legal pot legislation working its way through Albany troubles advocates on a few levels. They worry that the Governor’s plan doesn’t go far enough to promote economic, social and environmental justice in communities that have been disproportionately affected by prohibition.

In states that have legalized, wealthy white people have benefited the most, in part because past marijuana convictions have blocked people of color from participating in legal weed markets. With that in mind, black lawmakers have vowed to block legalization unless there’s an explicit benefit to communities of color.

“I haven’t seen anyone do it correctly,” Assemblywoman Crystal Peoples-Stokes told the New York Times.

“They thought we were going to trust that at the end of the day, these communities would be invested in. But that’s not something I want to trust,” she added. “If it’s not required in the statute, then it won’t happen.”

“We’ve heard the narrative shift from just legalization to legalization in a meaningful, thoughtful way that really does address the harms caused to communities of color,” Cristina Buccola, a lawyer and pro-legalization activist tells Next City. But, unlike in California, currently New York doesn’t allow expungement. Instead, it’s possible to get your record sealed or vacated.

“When you have expungement, it’s like it never happened,” Buccola says. “If it’s sealed, it’s still discoverable. It’s also really expensive [to go through the record-sealing process],” she says. Both the State House and Senate have called for more expansive expungement strategies than what Cuomo has proposed, one of several issues that might stymie legalization efforts in 2019.

And some features of the Governor’s plan might, once again, make young people of color like Posada police targets. “The Governor’s proposal is not explicit about collateral consequences people face from criminalization,” Posada notes, pointing out that the original proposal, authored by Assembly Majority Leader Crystal Peoples-Stokes’ and state Sen. Liz Krueger, was more explicit about fighting the inequities of prohibition.

“The bill should say marijuana use should not [affect having] access to housing, family unity or immigration status,” Posada observes.

Ironically, in the legislation that was slated to be cemented in the budget on April 1st, some marijuana penalties were harsher. “The criminal sale to a minor is raised from 18 to 21, and those penalties are harsher under the framework,” Posada noted. There were also more severe restrictions on growth, than, say, for beer microbreweries.

“Driving under the influence? A first-time offense would be a felony,” Posada says. “That’s not the case [right] now. The criminal penalties associated with youth and possession for minors are also bigger and harsher.”

Late in March, the governor faced opposition both from law enforcement groups who have concerns about the loosening of pot laws, and lawmakers who say the legislation doesn’t do enough to repair the damage that prohibition has done to communities of color. At that point, Cuomo said legalization would not make it into the April 1 budget.

“The politics is easy. ‘I support legalizing marijuana. Yay.’ Ok, everybody claps. Now, how do you do it?” Cuomo told WAMC. “Now you have to govern, as opposed to just doing a bumper-sticker political slogan.”

But the Governor seems committed to legalization, pledging to get a measure passed in June.

“We will get marijuana done. It’s not a question of political desire, it’s a question of the practical reality of how you put the new system in place, which is not easy,” Gov. Cuomo said. “You still need to patrol and regulate.”

It’s not clear how the state and city plan to ensure a racial justice component.

Fate Winslow.

Fate Winslow: Life Without Parole for a $20 Delivery

Even as cities across the country grapple with equitable legalization, remember that some of the most egregious human rights abuses occur in areas where social and racial justice is not prioritized. That raises questions about whether the solution to the injustice of marijuana prohibition should be addressed at the city, state, or federal level.

51-year-old Fate Winslow is serving life without the possibility of parole at Louisiana State Penitentiary in Angola. The prison, which is roughly the size of Manhattan, sits atop a former slave plantation.

Angola is a slave plantation and that should describe how Angola is treating me,” he writes from Louisiana. “The food is getting worser [sic] and the prices are becoming more ridiculous. Plus they won’t add one penny to my pay.” Winslow makes 2 cents an hour, or 80 cents a week, cleaning the crowded prison dorm.

“Soups are 38 cent and chips are 56 cent,” he writes. “Without the grace of God, I would be in extreme frustration.”

In 2008, Winslow was homeless in Shreveport, Louisiana when an undercover cop asked him for “a girl.” Instead of a girl, Winslow came up with $20 worth of pot that he got from a white dealer. He made $5 in the transaction, which he says he took to get something to eat. Winslow was arrested. The white dealer was not. He went to trial, and because he had (nonviolent) priors, he got life without parole at Angola.

Like Michael Thompson, Winslow has trouble understanding how a plant that got him LWOP is making millionaires out of entrepreneurs and has become the rallying cry for Democrats looking to prove their cred with progressive voters in 2020.

“ … it being legal is something that the people decided to do and it’s cool, but for people to be receiving life sentences for pot is bad,” Winslow writes. “Louisiana has shown us how corrupt they are when it comes to the law … this sentence I have is unconstitutional, but Louisiana is trying to find all kinds of ways to milk the taxpayers out of some more free money. The world can see this, because a blind man is the one who [has] seen it first.”

Michael Thompson hopes that Michigan Governor Gretchen Whitmer, who campaigned in part on prison reform, will pardon him. In fact, there’s a campaign to secure his release, organized by activist Nadia Fischer, who approached Michigan Governor Gretchen Whitmer on April 1st to ask her to vacate Thompson’s 60-year sentence.

Fischer thought Thompson would get out last year, but departing Governor Rick Snyder did not approve Thompson’s petition. “The denial of his commutation request has reignited the fire for justice that burns in my soul. The punishment does not fit the crime. It’s just that simple,” she says.

Thompson had hope in the new Governor.

“The new Michigan governor campaigned to fix Michigan roads, Michigan water and fix a comprehensive prison reform. Well, only God knows her true heart. Time will speak without talking,” Thompson writes.

But he’s still in prison.

“I assumed that out of everyone who had filed, I would be on top of this Governor’s list for release. However, when someone slid an envelope under my prison cell door, it never occurred to me that this would be a denial from Governor [Whitmer]’s office,” Thompson writes from prison. “So, I finally open this envelope with hope/fear, which quickly turned into shock!”

“Well, I couldn’t believe [it], once again they passed over me.”

EDITOR’S NOTE: A previous version of this story stated the incorrect number of California counties that have partnered with Clear My Record to conduct automatic record clearances for marijuana convictions. It is four counties, not 14.

Tana Ganeva is a reporter covering criminal justice, drug policy, immigration and politics. She has written for The Intercept, Washington Post, RollingStone.com, Glamour, Gothamist, Vice and the Stanford Social Innovation Review. Prior to that, she was deputy editor of The Influence, a web magazine about drug policy and criminal justice. For years she served as the managing editor of AlterNet.org.

Eleanor Barba is a visual and performance artist living in Philadelphia. Select shows include “It’s OK,” at Hightide Gallery in Philadelphia, and “Survey Says,” at BMP Collective in Baltimore. Eleanor’s previous work for Next City includes the cover illustration for the 15th Anniversary print magazine, “Fifteen Solutions for Cities.” She is also the Integrated Sales and Marketing Coordinator for Next City.