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Why Is Anyone Still in Prison for Weed?

The pot business is booming, but 40,000 people are still behind bars for marijuana-related crimes. Could a new federal bill change that?

Kim Foxx still remembers how scared her mother would get in public, knowing that a run-in with police could lead to finding a joint in her purse. Marijuana was her medicine; it helped to level out her mood and aches. But she had few freedoms in an era when the plant was seen as a scourge on society, peddled by violent dealers to get kids hooked on dope. 

“I remember one instance in particular, when I was about 12 or 13, and my mother got into an argument with the bus driver. He called the police, and the sheer fear on her face, because she had a joint in her bag, was horrible. She handed the bag to me in a panic,” Foxx tells me. “When I became a lawyer and a prosecutor, it was troubling for me to realize that my mother wasn’t a criminal. I saw firsthand that marijuana didn’t somehow make her less of a mother or anything else. And I thought there was hypocrisy in that.” 

That hypocrisy is made black and white in present-day America, where pot is a $60 billion industry and the darling of the investor class, yet it’s also the reason 40,000 people, who are disproportionately from communities of color, are languishing behind bars. To date, 36 states and the District of Columbia have legalized weed for medical or recreational use. But the shadow of federal prohibition means that the people who were locked up before the sea change in attitudes are left suffering under sentences that no longer make any sense. 

Foxx is the state’s attorney of Cook County, Illinois, the second-largest prosecutor’s office in the country, where she has vowed to overturn low-level marijuana charges and expunge them from records whenever possible. She was instrumental in writing the bill to legalize marijuana in the state, which passed in 2019. Since then, her office has worked to clear thousands of marijuana crimes from the books. 

But all the while — and despite the broad cultural acceptance of marijuana by the American public — low-level arrests are still happening en masse. By the FBI’s own data, more people were arrested for marijuana in 2019 than for all violent crimes put together. In other words, there are two marijuana realities — one with the winners riding high on a boom, and the other with losers peering out from the shadows, wondering where the hustle went wrong. 

“Mass clemency at the federal level is absolutely necessary to contend with the problem of mass incarceration, especially around these failed War on Drug policies,” Foxx says. “It’s a real opportunity for the Biden administration to prove its commitment in this arena.” 

Whether or not that will come into fruition depends on the future of the Cannabis Administration and Opportunity Act, a bill that was introduced last month by Democratic Senator Chuck Schumer of New York. It is, in a sense, the endpoint of a decade of debates over decriminalizing marijuana as a federal policy. In addition to opening doors for banks and businesses, it would immediately expunge nonviolent marijuana arrests and convictions while also mandating resentencing hearings for anyone still serving federal time for a non-violent marijuana crime. 

This is a landmark moment in American history, as it’s the first federal effort to repeal a century-long prohibition that’s been the lynchpin in the country’s fight against drug use writ large. But one bitter factor for Foxx is that positive change has come as a reaction to the white, corporate monetization of marijuana — a stark contrast to the disproportionately Black and brown people who have been locked up for possessing it on the street

Poor communities of color have long shouldered the brutal burden of drug law punishments, with many left struggling to get a job, housing or voting rights because of a single felony. Even in recent years, we’ve continued to see racial bias in how pot is policed. A 2020 report from the ACLU found that Black people were 3.6 times more likely than white people to be arrested for possessing marijuana, despite strong evidence that both groups consume pot at a similar rate. A disparity in arrests was noticed even in states with legalized marijuana.

“It’s the John Boehners of the world who are having their come-to-Jesus moment, because they’re now making money off pot and sitting on a cannabis company’s board,” Foxx says, referencing the Republican’s stumping for a pot lobbying group and a marijuana investment firm despite his staunch opposition to decriminalizing marijuana in the past. “To me, it’s incredibly frustrating to see this outlook of, ‘It’s okay because we can make money off it,’ alongside the complete neglect of Black and brown communities, which labored under all these drug law convictions that were never fair to begin with.” 

For Foxx, fighting back in her district means getting people with petty drug crimes out of the criminal justice system as quickly as possible. She’s also overturning marijuana distribution charges on a case-by-case basis — a step that will garner criticism, given the stigma around dealing drugs, but it’s a move that recognizes a lot of people are profiting off of bud today. 

Living with a parent who was terrified of getting locked up, all for the sin of self-medicating, taught Foxx about how twisted the War on Drugs is. In her eyes, decriminalizing marijuana is the “gateway drug” to decriminalizing everything else. A change in federal marijuana law would usher in a new era, and potentially make broad change possible. 

“The time for this country to reckon with why we’ve treated drug use as a criminal justice issue, not a public health one, is now. My hope is that the next frontier is decriminalizing harder drugs. It’s not a popular position, and I understand the reluctance that others, especially law enforcement and prosecutors, may have,” Foxx says. “But prohibition hasn’t worked. And we can’t just keep destroying lives. ” 

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