View From Harlem: Marijuana Legalization Is a Hollow Victory If We Still Criminalize Other Drugs

Sitting in a parked car on 132nd Street and Lenox, Joseph “Jazz” Hayden wonders what effect marijuana legalization would have on the streets of Harlem, where he has spent most of his 75 years.

“If you see all the people who are benefitting from legalization of marijuana, they’re not the people who are most impacted by the prohibition of marijuana,” he points out. “You don’t see no black faces nowhere setting up these corporations.”

He suggests that for people looking to open a marijuana dispensary, “one of the requirements should be that you were impacted by the prohibition, that you spent some time in prison.”

In 1979, Hayden was sentenced to 15 years on a conspiracy charge for his role in Nicky Barnes’ infamous drug ring, known as The Commission, which dominated the heroin and cocaine trade in 1970s Harlem. In recent years, he has made a name for himself as a community activist, filming instances of police harassment and posting them on his site, AllThingsHarlem.com.

Over half of all US drug arrests are for marijuana, according to the ACLU, and black people are nearly four times as likely as whites to be arrested for it. Two years ago, New York City Mayor Bill de Blasio declared that possession of under 25 grams of cannabis would be punishable by summons rather than arrest, and misdemeanor arrests plummeted. The change was short-lived, however, and the first three months of 2016 saw a 30 percent increase in arrests for possession or sale of small amounts of marijuana compared to the same period last year. Out of all the New Yorkers arrested on misdemeanor charges in 2016, 86.5 percent were people of color.

Hayden believes a key component of marijuana legalization should be that offenders’ rights be restored and their records wiped clean. “When the civil rights struggle got to the prison walls it stopped,” he says. “When the prison population expanded from 300,000 to 2.5 million, they took back a considerable part of the gains of the Voting Rights Act.”

Considering the vast system of social control that the US prison system embodies, it will take more than a thriving marijuana industry to convince Hayden that black Americans are no longer seen as a surplus population.

“I’m waiting for a white-run marijuana business to open up in Harlem,” he says wryly, pausing for effect. “We’re gonna boycott them.”

The marijuana business is a booming industry, arguably the fastest-growing in the country, which explains why a legalization campaign that started out as a fringe social justice movement is starting to look more like a traditional lobby. According to one estimate, the overall market for legal weed will reach $7.1 billion in 2016.

At the same time, the marijuana legalization movement has become a formidable force in national politics, as the inclusion of a pro-legalization provision in the Democrats’ most recent party platform can attest. The provision advocates reclassifying marijuana from a Schedule I federal controlled substance in order to provide “a reasoned pathway for future legalization.” But what will this pathway look like?

Amid glaring income inequality, weakened social programs, and rampant police violence, the growing acceptance of America’s favorite semi-illicit drug marks a rare and welcome bright spot. Though the DEA just declined to reschedule cannabis, medical marijuana is already legal in 25 states, of which four (plus Washington, DC) have legalized for recreational use.

Hayden points across the street to the group of friends he had introduced me to earlier, guys from the old neighborhood who sit in fold-out chairs trading jokes.

“I’ve labeled them survivors,” he says, “because we’ve all been through the same process and we’ve all suffered at the hands of the system.”

The old-timers are veterans of a war that continues to eat the young, and Hayden doubts that a drug legalization movement catering to the ruling class can put a stop to it. He cites Portugal as an example of a society that has decriminalizedall drugs (in 2001) and made a drastic shift from punitive to treatment-based policy.

Such a policy, if adapted in the US and applied retroactively, could make a serious dent in a prison population that has grown to be the world’s largest: well over two million people incarcerated, with a total of nearly seven million under correctional supervision.

A study by the Bureau of Justice Statistics showed that drug-related crimes accounted for over half the federal prison population in 2012—a population that grew 63 percent over the previous 14 years, even as crime rates fell drastically. The majority of federal drug prisoners were incarcerated for an offense related to powder or crack cocaine, while only 12 percent were in prison for marijuana.

It is impossible to deal with phenomena like stop-and-frisk, warrantless searches, SWAT teams, and execution-style police shootings without addressing the legal foundation of America’s War on Drugs. The tanks and body armor that have turned local police departments into small armies come from federal grants designed to crack down on drug dealers, many of whom are currently serving life sentences due to mandatory minimums and three-strike rules.

JoAnne Page is president and CEO of the Fortune Society, a non-profit dedicated to supporting re-entry from prison and alternatives to incarceration. Most of her staff members have been incarcerated at some point, and Page says half have struggled with drug issues. While marijuana-centric organizations like NORML extol its relative harmlessness, Page is more concerned with legalization’s possible unintended side effects.

“We’re moving toward legalization of marijuana, and some if it is economic because the tax incentives are enormous,” Page told me in a phone conversation, “but the larger question is what do you do about mass incarceration.” She worries that a marijuana movement coupled with a tough-on-crime mentality that shifts attention to other drugs might end up resulting in “no net decrease” in prisoners. “We could possibly see a net increase,” she warns.

When she worked as a defense attorney at the Legal Aid Society in the early ’80s, Page didn’t even bother memorizing the drug statutes because they were applied so infrequently. But soon, Reagan would ramp up the War on Drugs—creating mandatory minimums, reducing funding for drug treatment and education, and granting law enforcement agencies the power to seize assets of drug suspects. Within years, the prison population had exploded.

Page, like Hayden, recognizes that there is a fork in the road ahead that can lead to either ending the failed war on drugs or merely a displacement of state violence. Drug-law reform will only dramatically reduce incarceration if the legalization of marijuana leads to the legalization (or at least, the decriminalization) of other drugs as well. Call it a reverse “gateway” effect.

The other path would see the increasing concentration of social and economic gains from pot legalization at the top—and one can already see this corporate-friendly approach in many of the state-by-state legalization efforts.

Take the case of Effingham Farms in Illinois, which was recently given a green light by the state to grow marijuana for medical purposes. Over the previous year, the farm’s investors had pleaded with city council members to approve their zoning request, pledging to give away half their earnings to educational initiatives, including charter schools.

Though Effingham Commissioner Brian Milleville accused the farm’s investors of trying to “grease a palm,” the entrepreneurs see their pledge as not just altruistic but good for business. “We believe it is in the company’s interest to fund vocational education because we need trained workers,” said investor Jon Loevy, a Chicago attorney.

The approach to drug policy reform that sees only marijuana as worthy of legalization raises a question that might be applied to charter schools that see only a select few students as worthy of a top-notch education: Once you separate the wheat from the chaff, what happens to the chaff?

If all else remains unchanged—paltry job prospects, invasive policing, draconian sentences for other drugs—marijuana legalization will be a hollow victory. It will be good for dispensary owners and app developers, not for the working class people of color who have long borne the brunt of prohibition.

Even legalizing all drugs would be no magic bullet for racial justice, of course: Cops can always come up with new reasons to harass and detain, and lawyers aren’t getting any cheaper.

But only with the total eradication of criminal penalties for drug “offenses”—applied retroactively, and with some form of reparations for those who have been targeted—will the drug policy reform movement achieve its greatest good.