What If We Didn’t… jail people for marijuana use, possession or sale?

The hands of a handcuffed person and a marijuana leaf illustration in the center of the photo

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Rodney Hampton is a 45-year-old entrepreneur and community activist, whose debut in the legal medical marijuana business almost didn’t happen.

It was 28 years ago that Hampton had been illegally selling marijuana near San Francisco’s Bayview Hunters Point, the historically black and working-class neighborhood where he was raised. He has a vivid memory of an evening encounter with undercover police.

“The car came down a little court on Cashmere [Street],” he said. “I had 34 grams of merchandise in my hand. They asked me if I had more and drove away.”

The undercover officers soon doubled back and, suddenly, Hampton was blinded by high beams. They ordered him to freeze, he recalled. Without much forethought, Hampton, a black man, reached into his pocket and threw a sack of weed under a nearby vehicle.

Rodney Hampton/Facebook

“I thank God, now, that I’m alive,” he said. “They could’ve easily shot me for reaching. Cops will shoot folks. Maybe it was an example of good community policing.”

That was in 1990, one day shy of Hampton’s 19th birthday and roughly six years before California would be the first of 29 states to permit sales of medical marijuana. On Jan. 1, 1995, the Golden State became the ninth in the union to lift its prohibition on recreational marijuana use and sales.

Across the country, however, federal law still bans cannabis. Despite evidence that the substance was, for thousands of years, a medical remedy that spanned cultures, prohibition activists still argue that marijuana use is a gateway to synthetic drug addiction and a precursor to criminality.

“We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger,” Attorney General Jeff Sessions said during a 2016 Senate hearing on recreational cannabis.

U.S. criminalization and varied state laws against weed have been a key driver of mass incarceration. Decades of arrests, seizures and jailing of offenders have not decreased the rates at which Americans use marijuana.

It has created racial disparities in who is punished and how harshly, for use, possession and sales. For instance, Latinos make up more than half of federal prisoners locked up for marijuana, even though they are just 17.8% of the U.S. population. Lives have been unnecessarily upended, advocates say. And in many cases, criminalization at a young age has become a predictor of lifelong contact with the nation’s criminal justice system.

Rich Pedroncelli/AP

But what if we just didn’t jail people over weed? For over five years, a majority of Americans have favored legalization. More than 20 years into the establishment of the modern medical and recreational marijuana industries, advocates for decriminalization say evidence of societal good is stacking up against die-hard prohibitionists. Recent analyses show states are saving money by arresting fewer people for nonviolent drug offenses, while other western nations reap the benefits of decriminalizing illicit drugs and treating addiction as a public health crisis.

The Trump administration recently announced it won’t crack down on legal marijuana in states, but there are only a handful of proposed measures in Congress to lift the federal ban. The lack of momentum behind national legalization aside, damage done by criminalization and incarceration is increasingly undeniable to people across the political spectrum, advocates have said.

“Our love affair with incarceration is very American,” Kara Gotsch, director of strategic partnerships for the Sentencing Project, said in an interview. The Washington-based prison reform advocacy group has studied the impact of drug policies for 30 years. “I don’t think you can underestimate the harm caused. In other countries, they don’t do that. There is not a desire to create some other existence for people who commit drug offenses. There is an altogether different philosophy.”

Why did the U.S. start locking people up for marijuana in the first place?

It may not shock some to learn that U.S. cannabis prohibition might be rooted in xenophobia and racism. According to an advice-like column of the Drug Policy Alliance, public opinions toward marijuana were shaped in the early 1900s, when the Mexican Revolution brought an influx of immigrants across the southern border.

Mexicans and indigenous people brought along their cannabis — they’d used it as medicine and a relaxant — with foreign language and customs, Dr. Malik Burnett and Amanda Reiman, Ph.D., wrote in the column.

“The idea [of weed prohibition] was to have an excuse to search, detain and deport Mexican immigrants,” Burnett and Reiman wrote.

During U.S. hearings in the 1930s, longtime federal narcotics bureau commissioner Harry Anslinger claimed that nonwhite men who used marijuana — black jazz musicians, Latino farmworkers and other so-deemed undesirables — were apt to violence and were sexually harassing white women. The hearings led to passage of prohibition laws through the Marijuana Tax Act of 1937. The act was later ruled unconstitutional.

Negative attitudes toward illicit drugs persisted, as did growing poverty and racial tensions in a post-civil rights movement era. In 1970, former President Richard Nixon took a “law and order” approach to fixing social issues, effectively launching the War on Drugs and signing the Controlled Substances Act. That made marijuana a Schedule I drug — considered on the same level as the much more addictive drugs heroin and “ecstacy.”

In the 1980s, when the prevalence of drug use showed no clear signs of decline, former President Ronald Reagan continued the status quo. With the help of his wife, former first lady Nancy Reagan, the administration leaned into perpetuating existing negative attitudes toward drug use. They softened the message through now-infamous “just say no” campaigns that de-emphasized science-based approaches to treating drug abuse and addiction. The campaigns didn’t reduce the rates at which Americans used drugs, research has shown.

Barry Sweet/AP

By the early 1990s, a spike in violent crime rates across the country was met with a broader expansion of policing and harsher drug sentencing. In 1994, former President Bill Clinton signed the Violent Crime Control and Law Enforcement Act, providing funds for hiring tens of thousands of additional police officers, building new local jails and federal prisons, and creating some prevention programs. An era of mass incarceration was roaring full steam ahead — and it all was seemingly founded on the notion that stopping drug use was a way to both fight crime and control the non-white population.

As marijuana legalization now spreads across the country, few people are considering the “collateral consequences associated with [prior drug] arrest and or conviction,” Jolene Forman, staff attorney for the Drug Policy Alliance, said in an interview.

There is a “lack of access of funding to education,” she continued. “[There is] having to check a box when filling out employment applications, so then it makes it harder to get a job; a lack of access to public benefits, including food stamps in some states; and lack of access to housing.”

Hampton only spent roughly 22 hours in jail for his drug arrest in 1990. But as a result, he was forced out of his home in Bayview Hunters Point. At the time, the conviction meant his mother risked eviction from a public housing project if she kept her drug offender son on the lease, he said. At 18, Hampton was already a father and needed to find legal work. A post-arrest interview at McDonald’s went well, he said. But after Hampton was honest about his drug conviction, the fast food chain didn’t offer him a job.

“It was very damaging, mentally,” he said. “You’re trying to get to something better, but there are all of these barriers.”

There are millions of black men and women with stories similar to or much more severe than Hampton’s. According to the most recent report from the Prison Policy Institute, about 2.3 million people are incarcerated in the U.S. criminal justice system — that’s more inmates than any other country in the world.

Ezra Shaw/Getty Images

One in five incarcerated people are locked up for nonviolent drug offenses, between federal penitentiaries, state prisons and local jails. In order to understand the racial disparities, one only needs to look at the federal prison population in the last several years, reform advocates have said.

As of late March, 79,094 people, or 46.2% of the federal prison population, were in prison for committing or pleading to a drug offense, according to the Bureau of Prisons’ count. In 2012, 11,533 of the 94,678 inmates in federal prison were there for marijuana, the most recent Bureau of Justice Statistics report shows.

Of marijuana offenders in federal lockup in 2012, 24% were white, 13.9% were black, 59% were Hispanic, 1.7% were Asian and 1.5% were American Indian. That’s a vast underrepresentation of whites, who use marijuana at the same rates as blacks. There’s also an overrepresentation of Hispanics, due to a significant focus on catching drug traffickers.

Black people, which make up about 13% of the U.S. population, are a disproportionate majority of those locked up for crack cocaine. That’s a different story for another day.

What have other countries figured out about marijuana that the U.S. has not?

The short answer: not all that much. Marijuana is expressly decriminalized in several countries, but that doesn’t mean people don’t face jail time for trafficking and selling it in those progressive western nations.

Legalization advocates have pointed to the Netherlands as an ideal nation that figured out how to look the other way. “Coffee shops” sell joints, edibles and other products that give users a euphoric high. Over time, Amsterdam has grown more restrictive about the widespread use of cannabis. The Dutch reduced the number of dispensaries and relocated some of them. In 2007, it became illegal to smoke joints in public areas.

Even as European nations consider most drug use a societal nuisance, these nations aren’t prescribing the long periods of incarceration that offenders face in the United States.

In 2001, Portugal became the first country to decriminalize use or possession of all illicit substances — not just marijuana, but also heroin, methamphetamines and other highly addictive drugs. Abusers might receive a warning, or a petty fine. These policies led to a steep decline in HIV and hepatitis infection rates, as well as overdose deaths, drug-related crimes and incarceration rates by 2015, according to a 2017 report by the Guardian.

“Portugal’s remarkable recovery, and the fact that it has held steady through several changes in government … could not have happened without an enormous cultural shift, and a change in how the country viewed drugs, addiction — and itself,” journalist Susana Ferreira wrote for the Guardian.

Jasper Juinen/Getty Images

In its 45-year history, the U.S. Drug Enforcement Agency has not shifted with the culture on marijuana. In 2010, the agency published a booklet titled “Speaking Out Against Drug Legalization,” in which it called marijuana a “dangerous, mind-altering drug.” Weed legalization and taxation would not help local economies, the DEA asserted.

President Donald Trump has called marijuana legalization a matter that should be left up to individual states. But Sessions, who has expressed his own peculiar views against weed, in 2017 called on federal prosecutors to seek the harshest penalties and prison sentences on drug offenders. Critics fear the Trump administration intends to ramp up the drug war.

Meanwhile, a growing number of cities and states are considering marijuana legalization. Nine states — Washington, Oregon, California, Nevada, Alaska, Colorado, Maine, Vermont and Massachusetts — and the District of Columbia have already legalized recreational use. Elected leaders in New York City, the nation’s most populous city, are split on legalization but are currently studying it.

The benefits of decriminalization are outweighing the costs of holding firm to prohibition, and are driving a push toward broader legalization, advocates have said.

So, what exactly would it look like to stop jailing people for weed?

Legalization has led to outcomes that were once simple hypothesis by decriminalization advocates. According to a Drug Policy Alliance status report on marijuana legalization, arrests are down and investments in public services like education are up.

“Legalization has been around in these states long enough to really evaluate,” Forman, the attorney for the Drug Policy Alliance, said. “States have been able to fill their coffers with marijuana tax revenues, and they’ve been able to use those revenues for the social good.”

In Washington state, Colorado, Oregon and Alaska, among others, the number of low-level marijuana court filings dropped by as much as 98.6% over a few years, according to the DPA’s status report. Meanwhile, tens of millions of dollars in marijuana tax revenues are already being put to use.

Colorado funneled $230 million to the state Department of Education for school construction and literacy programs, according to the status report. Oregon is allocating 40% of marijuana tax revenue to state school funding. In California and Massachusetts there are plans to invest in low-income communities and communities of color that have been most impacted by arrests and incarceration in the War on Drugs.

Mathew Sumner/AP

Under California’s voter-approved proposition, inmates currently locked up for illegal marijuana possession can qualify for early release and record expungement, if their drug crime is now considered a lesser offense.

That’s significant, advocates have said, given the social and economic consequences of drug convictions. A 2016 report by the Center for Economic and Policy Research think tank states that prison-related policies in 2014 cost the U.S. economy as much as $87 billion in gross domestic product, because businesses did not hire more people who were formerly incarcerated.

Potential collateral consequences after federal legalization are myriad: Fewer children would know what it’s like to live their formative years without their parents, studies show, and fewer women would struggle with depression or endure economic hardship because of an incarcerated partner. Fewer potential voters would be precluded from participating in democracy, too. Currently, 34 states bar parolees and people on probation from voting. In 12 states, a felony drug conviction means you are stripped of your right to vote for life.


After his marijuana arrest in San Francisco decades ago, Hampton was able to have his conviction reduced to a misdemeanor. He then enrolled at Alabama State University, a historically black college in Montgomery, and earned a degree in business administration.

Given that California now permits the sale of recreational marijuana, Hampton is eligible for a state program that helps people with prior drug convictions join the legal marijuana industry. He already owns a very small portion of a marijuana dispensary in San Francisco, and has applied to operate a second dispensary in the city, where he’d own a much larger share of the business.

Hampton needs the revenue — he’s the father of seven children, the eldest is 29 and the youngest is 6 years old. He also has five grandchildren.

“Back in the 1990s, I was out selling marijuana to keep money in my pocket,” Hampton said in a phone interview. “I had to provide for my kids.”

That’s still true, he said. But he’s hopeful that legalization will mean more men like him have the opportunity to mature into responsible citizens, without the threat of incarceration, whether they want to enter the marijuana industry or not.