States have increasingly applied social equity goals within their marijuana legalization programs. This effort began at the municipal level, but Massachusetts created a statewide social equity plan within its framework for legal marijuana in 2018, and ensuing states— including Connecticut, Illinois, New Jersey, New York, Virginia, and Vermont—have iterated with alternative approaches to addressing social equity.
Nominally, social equity programs are designed to bring about restorative justice for what are viewed as arbitrary and discriminatory arrests, convictions and incarceration of Americans during the War on Drugs.
However, current approaches to social justice employed by all these states fail to target relief to the affected populations and create new barriers for legacy suppliers of marijuana products to gain legitimacy on a legal market.
Part 2 of this paper reviews the history of the drug war and assesses the extent to which it was designed and executed in a discriminatory fashion. It reviews arrest and use statistics compiled by federal agencies and concludes that the drug war was designed and executed in racially discriminatory ways that created social inequities.
Part 3 elaborates on the collateral consequences that individuals suffer as a result of a prior drug conviction beyond the initial penalty of fines or jail time. Carrying a prior conviction may negatively affect an individual’s ability to pursue gainful employment, attend college, or apply for a business loan for the remainder of their lives.
Part 4 details existing state efforts to promote social equity within their regulated marijuana markets. It highlights instances where these efforts have systematically failed to bring about the restorative justice envisioned by proponents.
Part 5 provides further analysis of these insights by examining whether social equity plans are working as intended and what considerations should be made before undertaking a plan to promote social equity.
Part 6 makes recommendations for how social equity plans should be structured in the future. It focuses on two overarching themes, each with various implications and subcomponents.
First, state-regulated marijuana markets should be structured to intentionally facilitate the transition of legacy suppliers—those who previously manufactured or distributed marijuana on an unlicensed basis—into the regulated market by minimizing barriers to entry. Too often, state efforts to promote social equity within regulated marijuana markets have had the unintended consequence of creating a new version of the drug war.
Second, states can focus on restorative justice measures once they have ceased causing new harm. These include expunging convictions for actions that are no longer a crime and following tort law traditions to redress specific harms suffered by individuals who were directly affected by the drug war. These tort law traditions may extend up to and possibly include the payment of financial damages, for which guidance is provided.
Many commentators have correctly pointed out that the design and implementation of the drug war has been discriminatory toward certain groups.
The data reviewed in Part 2 confirms this is true, but provides nuance regarding certain inflection points in the drug war, including the passage of the 1994 Crime Bill and state liberalization of marijuana laws in the 2010s. Moreover, the harms suffered by individual victims of these discriminatory actions extend beyond criminal sanctions and include a range of collateral consequences.
States have increasingly displayed an interest in redressing these historical harms by including social equity initiatives within their frameworks for legal marijuana. However, the initiatives brought forth by states to date largely fail to target relief toward actual victims of the drug war and have too often been usurped by completely unintended third parties. The failures of state social equity initiatives to date point to a need for an entirely new model of social equity.
States have unnecessarily raised barriers to entry into the legal marketplace and impeded the transition of legacy marijuana suppliers into an orderly market. This basic failure perpetuates the harms of the drug war and undermines legal markets. States should actively seek to minimize barriers to entry in order to facilitate the transition of legacy suppliers into the regulated marketplace.
Once states have ceased creating new harms, they can focus on providing restorative justice to previous victims of the drug war. This should include an automatic expungement for convictions of acts that are no longer crimes.
Other restorative justice provisions, which may include the payment of financial damages, should follow tort law traditions that target relief toward actual victims and prevent third parties from diverting and diluting these relief efforts.
Marijuana social equity misfire: Why state efforts to promote restorative justice within the cannabis industry have failed, and how a market-based approach can provide better outcomes