Across the US, states are in the process of adopting legislation legalising the consumption of cannabis. These pieces of legislation are primarily the result of election day ballot measures, approved by the public rather than elected officials. As of 2022, 18 states have legalised recreational cannabis, and 37 have legalised its medical use. Legislation legalising cannabis at a federal level is currently making its way through Congress, though the outcome is yet uncertain.
On the surface, legalisation represents a refutation of the alarmist narratives associated with the war on drugs. However, cannabis legalisation has introduced a number of new complications and, despite its veneer of progressiveness, has in many ways failed to correct the structural injustices wrought by decades of discriminatory cannabis policy. In response, activists are seeking reparation.
UNSOLVED PROBLEMS WITH LEGALISED CANNABIS
The current strategy of state-by-state legalisation has often failed to institute the requisite oversight and regulation that would follow from federal legalisation. An episode of the Netflix documentary series Rotten investigates the manufacturing and distribution of edibles, highlighting how commercial interests drive the cannabis business, often to the detriment of the consumer and their safety. Further, the medicinal properties of cannabis are untested and its use rests largely on anecdotal evidence. The absence of robust cannabis studies may be endangering amateur users, but on the other hand, patients may also be receiving unnecessarily harsh and invasive treatments, lacking access to cannabinoids.
Beyond cannabis products themselves, legalisation policies are inequitably applied to cannabis vendors. Possession and consumption of cannabis is legal—often between one ounce and one pound, depending on what form the cannabis takes. Cannabis may be gifted in similar quantities, but as of today all sales are regulated. The vast majority of states where recreational cannabis use is legalised require vendors to be licensed.
In many states, such as Massachusetts, the process can be arduous, requiring applicants to submit multiple plans, pay fees, undergo a background check, conduct community outreach meetings, and host inspections. While many of these requirements are well-intentioned, they can also be prohibitive to those without capital and the time to commit to the process.
Several states have promised to expunge the records of those with previous low-level cannabis related offenses that conform to the new laws regulating possession for personal use, but many states have yet failed to do so, and all of them continue to arrest vendors operating without a license. The American Civil Liberties Union (ACLU) has found that even in states where cannabis has been legalised, Black people are 3.64 times more likely to be arrested for possession than their white counterparts.
THE RIGHT TO REMEDY
Human rights laws are often toothless, especially in the context of the US, which largely eschews international human rights in favour of its domestic civil rights paradigm, but they can nonetheless offer valuable language to those engaged in a struggle for justice. In the case of cannabis legalisation, the human right to remedy provides a framework through which to advocate for reparations, particularly reparations addressed to the harm caused by the war on drugs and mass incarceration.
Arguably, the right to remedy is a concept that undergirds any law that functions as a corrective mechanism to wrongdoing. In the human rights context however, the UN Human Rights Office of the High Commissioner published the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”.
One could certainly defend the claim that mass incarceration is tantamount to a gross violation of human rights. The 1993 UN Vienna Declaration and Program of Action’s definition of gross violations of human rights included “inhuman and degrading treatment or punishment” and “all forms of racism [and] racial discrimination”. Mass incarceration is inarguably racist, and often inhuman in a substantive and systematic way.
This argument may not have legal prospects, but the principles on the right to remedy nonetheless provide the conceptual architecture necessary for realising reparations on a small, but meaningful, scale. Enshrined in the right to remedy is the right to “adequate, effective and prompt reparation for harm suffered,” which itself comprises five elements: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
THE CASE FOR REPARATIONS
In 2014, the Atlantic published Ta-Nehisi Coates’s widely read article, “The Case for Reparations,” which argues that the US must offer redress for its centuries of racist lawmaking. He writes, “[w]hat I’m talking about is more than recompense for past injustices—more than a handout, a payoff, hush money, or a reluctant bribe. What I’m talking about is a national reckoning that would lead to spiritual renewal.”
His argument is ambitious, but the ideas within it are gaining traction. Scholars are sometimes skeptical of the utility of reparation, and not just on the basis of practicality. Reparation efforts sometimes occur only when the state in question has determined that it will benefit from a conciliatory overture. The symbolism of the gesture in such a case may mean more to the aggressor than the victim. However, this should not dissuade advocates from pursuing both recognition for harms suffered and material recompense.
As cannabis has been legalised, calls for reparations for mass incarceration have been taken up by grassroots communities, as well as NGOs like the ACLU and Open Society Foundations. New York’s Marijuana Regulation and Taxation Act is one of the first state-wide pieces of legislation to address the need for reparations. The bill includes provisions that dedicate 40% of revenue to reinvestment in communities disproportionately impacted by the drug war and set a goal to ensure that 50% of licenses be allotted to “equity applicants”. In spring of 2022, Governor Hochul affirmed this strategy, stating that previous cannabis offenders would be “first in line” to receive retail licenses.
The New York State program emphasises community enrichment rather than individual reparation and is, to an extent, unenforceable (the 50% equity applicants is written as a goal rather than a guarantee). Evanston, Illinois has embraced a marginally less bureaucratic approach, offering housing grants directly to Black residents using resources drawn from cannabis taxes.
THE GERMAN MODEL OF DIRECT REPARATION
In his article, Ta-Nehisi Coates invokes Germany’s reparations system as an example. Germany has perhaps engaged in the most widespread reparations project in history and remains solvent despite disbursing billions of dollars in reparations payments. The German system is imperfect—it has been criticised for overlooking Romani victims of the Holocaust and for its complicity in Israel’s persecution of Palestinians—but is also adaptative and continuous. In 2020, Germany pledged $662 million to Holocaust survivors worldwide to offset pandemic-related hardship, with survivors receiving direct cash payments.
In the US, the cannabis market is filling with products from cannabis entrepreneurs, who are making a lot of money. Legal cannabis sales are expected to top $33 billion in 2022. Where legal, almost every state exacts cannabis taxes, in both excise and sales, ranging from 3% to 37%. The Marijuana Policy Project estimates that in 2021, the states where cannabis has been legalised have collected almost $12 billion in tax revenue.
In the US, cannabis related criminal records have jeopardised people’s capacity to find employment, receive public benefits, apply for affordable housing, and seek custody of their children. As the cannabis industry becomes more widely accepted, there is no question that its revenue should be redistributed, not only to the communities of colour, which were disproportionately targeted during the war on drugs, but also directly to victims and their descendants.
Kendra Mills (she/her) is a program officer at the Center for Critical Democracy Studies and a volunteer researcher with the Education Justice Project. She holds an MSc. in Human Rights from the London School of Economics and is interested in alternative justice projects, technologies, and solidarity. Her writing can also be found on the LSE Human Rights Blog, the LSE Social Policy Blog, and in the Yale Historical Review.