The Failed Promise of Legal Pot

The Failed Promise of Legal Pot

It’s just after four o’clock on a hot Seattle afternoon, and Thomas Terry is standing in the parking lot of a Jack in the Box. Known for fights that end with police sirens and sometimes ambulances, it’s a spot some locals half-jokingly call “Stab in the Box,” but today the scene is quiet.

A man is walking up the street toward Terry and a few other young men who are gathered in the shade of a brick wall where the parking lot meets the sidewalk. As he draws near, one of them opens his mouth, and the words tumble out:

“Kush? You want some weed?”


Whether the man does or not, he says nothing, and keeps walking. It’s the middle of August, two years and eight months after voters in Washington passed an initiative to permit both the possession and sale of recreational marijuana—making the state the second in the nation to do so. In large part, the law was aimed at eliminating the black market for marijuana and redirecting those sales from parking lots and living rooms into stores, where the state could monitor and tax the transactions. Yet, although legal marijuana has generated real declines in arrests, the presence of Terry and the young men on the corner points to a hitch not just in the nuts and bolts of marijuana sales but in one of legalization’s most touted goals.

Asking to be identified only by his initials, D.C., one of the young men on the corner, breaks it down. Business has fallen since the law passed, but enough people think they can score a bargain, or simply don’t trust the shiny new stores, to keep things moving. The police know about it—they always have—and they still bust dealers. Sometimes they do sweeps, D.C. says, referring to a well-publicized raid downtown. The cops are definitely more relaxed about it, he says, but sometimes they still show up and bust whoever’s around.

A few days later, the corner is empty. The reason is a Ford SUV, painted black, blue, and white, idling at the curb a few feet away; a police officer’s arm hangs out the window as he surveys the faces passing by. A few hours later he is gone, and the crowd is back. Mostly, the crowd is black. Mostly, the cops who will bust them are white. Mostly, on the corner it’s hard to see how anything was changed by a movement that aimed to change everything.

The dream of legal marijuana as it is being sold to the American public is that it will not only give states a chance to reap a tax windfall off of a drug millions of Americans already use; it will end the back-and-forth tussle among cops, users, and dealers, and shift police resources to more serious crimes. Most compellingly, advocates hold out the promise of a major step toward dismantling one of the pillars of racially biased policing—the war on drugs—and finally reeling in a legal net that has long entangled black men at vastly disproportionate rates.

Proponents of legalization make this case explicitly. In factsheets and reports, the American Civil Liberties Union describes marijuana laws as generating “staggering” racial bias. And the statistics do paint a stark picture: Although whites are as likely to use marijuana as blacks, nationally black people are almost four times more likely to be arrested for possessing the drug. In some states, it’s closer to nine times. Those arrests in turn show up on background checks for everything from apartments to jobs, and despite the courts’ presumption of innocence, arrests are often treated by society as de facto markers of guilt. So in one fell swoop, voters are told, they can balance government budgets, begin to close a pipeline that sends one in three black men to prison, and free up the cops to chase real criminals. Plus, now it’s legal to get stoned.

One-half of the dream is coming true. In the first two states to go legal, arrests for marijuana possession have dropped dramatically—by 98 percent in Washington and 95 percent in Colorado as of last year—and high taxes in both states are generating tens of millions of dollars a year for education and public health. At the same time, legal markets in Washington and Colorado along with loosening medical-marijuana laws around the country have together exerted enough downward pressure on street prices that Central American cartels have reportedly begun to shift production away from marijuana, toward more profitable drugs like heroin.

But the other half of the dream is faltering. The rub lies in reconciling those dramatic statistics with the reality on the street: The same faces standing on the same corners. The same neighborhoods cruised by the same cops. The same cautious side-to-side look before a thickly flowered stem is removed from a backpack, peered at closely, maybe smelled and rolled between the fingers, and, in a quick change of hands, finally sold.

As legalization efforts proceed apace, the risk is that even as possession arrests taper off, black markets will continue entangling young black men. Half of all drug arrests are for marijuana, and about one in eight of those is for distribution. According to experts, even that number likely conceals cases where police target dealers but ultimately arrest them only for possession, which has lower probable-cause standards. And like possession arrests, arrests for selling marijuana show broad trends: The sellers who the cops catch are mostly male, more than half are under 24, and black people are arrested at four times the rate of whites, even though whites are up to 32 percent more likely to sell the drug.

The risk is that, by itself, legalizing marijuana possession changes none of this and that, even as legalization spreads, young black men will continue to be arrested at disproportionate rates for selling the drug. In turn, this leaves intact a version of the same specter that helped spur legalization in the first place: An arrest record’s scarlet letter will continue to blight the collective futures of urban communities of color, the natural effect of an economic incentive the state did not remove.

Why is a black market that was supposed to be vanquished still thriving? In short: economics. Judging the size of a black market has always been a tenuous endeavor. In Washington, one of the first big unknowns the state tackled when it set about creating a legal market was the size of the demand—a state that had just made a historic change to marijuana laws didn’t even know how much of it people smoked. But aside from some brief initial shortages, stores in Washington and Colorado haven’t generally had a problem keeping the shelves stocked. Partly, that’s because both states had preexisting medical-marijuana markets, and some of those producers easily migrated into the new legal recreational system.

Instead, what is keeping people in Colorado’s black market is price, with a dose of convenience thrown in, says Mark Vasquez, a former narcotics detective and now the chief of police in Erie, Colorado. Vasquez heads the Colorado Association of Police Chiefs’ marijuana working group and has traveled nationally to educate other departments about Colorado’s experience with its new legal system. “The black market,” he says, “is alive and well and will continue to thrive in Colorado.”

There are a few basic reasons for this. First, the medical market, Vasquez says, can sell marijuana more cheaply than the state-licensed and -regulated stores because

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