When marijuana was first legalized and regulated at the state level, what we now think of as social equity concerns—the idea of using marijuana legalization to remedy the past harms of marijuana prohibition—were not at the forefront. Rather, it was very much unclear whether the states would be allowed to tax and regulate marijuana at all. At the first meeting of Governor John Hickenlooper’s Task Force to implement Amendment 64 in Colorado in 2012, I was asked, only partly in jest, if we on the Task Force were going to go to prison for helping to write the regulations for the nation’s first taxed and regulated adult-use marijuana market. I couldn’t give a definitive no. Then, as now, marijuana was prohibited by the federal government, and the Obama administration had intimated that it would not countenance states moving from the regulation of marijuana for needy medical patients to the formation of for-profit adult-use marijuana industries. There was a real risk at that time that the federal government would attempt to invoke the supremacy clause to shut down the nascent adult-use marijuana industry or would simply begin prosecuting everyone who was in violation of federal law as well as those—lawyers, insurers, bankers, and regulators—who were helping them do so.
In the last 10 years, however, that has changed. It has become clear, in republican administrations as well as democratic ones, that the federal government has no interest either in enforcing federal law against those in compliance with robust state regulations or in seeking to shut down state regulatory efforts in court. This federal acquiescence has led to an increasing number of states legalizing marijuana, and momentum seems to be gathering for a repeal of the Controlled Substances Act and the legalization of marijuana at the federal level as well. As a result, marijuana has become big business in the United States, and many of those licensed to produce and sell it have been very successful. With an increasing number of nations around the world—including our neighbors to both the north and the south—legalizing marijuana at the national level, the prospect of an international, fully legal marijuana market in the near future has become a realistic possibility, bringing with it the possibility of even more explosive growth.
Thus, marijuana licensing is now occurring in an environment where those authorized to participate in the regulated market are gaining access to a scarce, valuable resource. When a state prohibits some market participants—those with a record of drug convictions, say—or favors others—those who live in particular neighborhoods or share certain demographic characteristics—it helps determine in a very concrete way who will succeed and who will fail in the burgeoning market. And given the disproportionate impact of the War on Drugs—a war that continues to be fought even as marijuana becomes big business—picking those winners and losers in a fair and equitable manner becomes all the more important.
Illinois was the first state to recognize the necessity of encouraging minority and disadvantaged participation in their nascent industry; now such provisions are routinely part of state initiatives to reform marijuana laws. Perhaps more importantly, social equity considerations are certain to be a crucial part of any change in federal law. For example, the Marijuana Opportunity Reinvestment and Expungement Act (commonly known as the MORE Act), proposed by Congressman Jerry Nadler (D-NY), would not only legalize marijuana at the federal level, but it would also create a mechanism for expunging marijuana convictions and an office for business loans to “assist small business concerns owned and controlled by socially and economically disadvantaged individuals that operate in eligible States or localities.” Other bills under consideration similarly take on issues of social equity and reparations for the harms of the drug war. And social equity concerns have inverted the traditional politics of marijuana reform: Senator Cory Booker (D-NJ), one of the most progressive members of the Senate and a long-time advocate for marijuana law reform, recently blocked the passage of the Secure and Fair Enforcement (SAFE) Banking Act, long thought to be the lowest hanging fruit of federal marijuana law reform. Booker announced that he would “lay myself down” to block the passage of a bill to make marijuana banking easier for current players in the marijuana industry before securing passage of a comprehensive federal reform law. Booker argued that the passage of the SAFE Banking Act “would only accomplish further enriching of people in a multi-billion industry without addressing the harms of the drug war.”
By criminalizing marijuana for more than 50 years under the Controlled Substances Act, the federal government has essentially absented itself from marijuana regulation. That work has been done, instead, by the states. As the federal government now moves, slowly, toward legalization at the federal level, it is already clear that social equity will play an important part in any decriminalization changes to come.