Marijuana Decrim Doesn’t Stop Discrimination, New Data Shows

Marijuana arrest rates are plummeting as a growing number of far-reaching state policy reforms like legalization and decriminalization are enacted; however, stark racial disparities in cannabis law enforcement remain, a new Marijuana.com analysis of policing data uncovers.

The data provided an illuminating follow-up to the 2013 American Civil Liberties Union report which made headlines by showing that, while African Americans and whites use marijuana at roughly equivalent rates, blacks are much more likely to be arrested for it.

Public records requests submitted via MuckRock to all 50 states for data pertaining to marijuana-related arrests show, on average, a significant decrease in possession offenses in the years since the publication of the ACLU report, which was based on 2010 data. But despite the apparent shift in focus away from the enforcement of marijuana possession laws, the racial bias in arrest rates uncovered by the ACLU remains intact.

The new data also revealed that decriminalization measures may have become an unintentional barrier to transparency in marijuana law enforcement. The classification of marijuana as a less serious offense in many states has resulted in a deprioritization of tracking critical information regarding who is stopped, and how often.

Among the key findings of the new Marijuana.com analysis are:

  • In New York, despite significant drops in arrests for misdemeanor possession of marijuana, black people are more than 13 times as likely as white people to be arrested for it.
  • Despite significant drops in overall arrest rates, Florida increased the number of people arrested for marijuana possession since 2010.
  • States with a large racial disparity in arrests – New York, North Carolina and South Carolina – also tend to be the states with higher overall arrest rates.
  • The largest drops in overall arrest rates since 2010 occurred in Nevada, Alaska, Connecticut and New York.

In all, data were received from 25 states; 12 states provided arrest numbers for local and state police – many not filtered by agency – while 13 either separated local and state police data or provided numbers only for state police. The remaining states for which data were not obtained either do not keep track of marijuana offenses as distinct from other drug-related crimes, do not keep track of marijuana offenses on a state level or charged prohibitively high fees for the same data which other states provided for free.

Some States See Increases In Marijuana Enforcement

Overall totals for the post-2010 period suggest a few states have not yet calibrated their policing priorities with public opinion, which is moving rapidly in favor of replacing marijuana criminalization with legalization. While most states appear to have decreased their overall enforcement of marijuana prohibition since 2010, Florida saw an increase in possession offenses. (Population data are based on estimates reported by the U.S. Census Bureau for 2013.)

marijuana possession offenses per 100,000 (on local and state levels)Turning to the state police agencies, the data showed a similar trend, with marijuana possession charges in red states – North Dakota, Wyoming, Nebraska, South Dakota and Missouri – comprising five of the top six states in number of offenses per capita. The data for Wyoming pertain to felony arrests only; taking misdemeanors into account would surely put the Cowboy State far ahead of the others.

marijuana possession offenses per 100,000 (state police only)Comparing the overall post-2010 arrests with the ACLU’s findings from 2001 and 2010, we see that arrests for marijuana possession have decreased substantially in several states – most notably in Nevada, New York, Vermont, Connecticut and Alaska.

marijuana possession offenses per 100,000 over time (on local and state levels)In a handful of states, such as Pennsylvania, Minnesota and North Carolina, arrest rates have largely remained the same as in 2010.

The drop in possession offenses in Connecticut between 2011 and 2013 is likely due in large part to a decriminalization law that went into effect on July 1, 2011.

On the other hand, Florida has seen an increase in marijuana possession arrests since 2010, as the above chart demonstrates. News reports indicate that arrest rates since 2010 have also increased in New Jersey and Virginia. By contrast, Washington, D.C. marijuana offenses fell dramatically between 2011 and November 2014, when residents voted to legalize possession of less than two ounces.

Racial Disparities in Enforcement Persist

While decreased overall arrest rates and decriminalization of marijuana don’t necessarily reduce racial disparities among those who are arrested – as the new data and prior media reports show – an increase in overall arrest rates may carry along with it a worsening racial bias.

Several states included data on the racial makeup of individuals arrested. Combining local and state police reports, an apparent enforcement bias against black Americans stands in sharp contrast to the arrest rate for the white population.

marijuana possession offenses per 100,00 by race (local and state police)While every state in the chart above exhibits a racial disparity, New York, Nevada, North Carolina and South Carolina display the largest gap in arrest rates between blacks and whites; these states – with the exception of Nevada – are also at the higher end of the spectrum in terms of overall arrest rates.

New York had the second highest overall arrest rate and has the largest racial bias, with black people being more than 13 times as likely as white people to be arrested for marijuana possession in 2013. The bulk of arrests in New York State occur in the Bronx, Brooklyn and Manhattan boroughs that make up New York City. These districts also happen to disproportionately arrest black and Hispanic/Latino people substantially more than other regions of the city. Since 2014, arrests for marijuana possession in New York state have declined, while summonses for possession have gone up, reports the New York Times.

As reported by the Washington Post, black people in Virginia were 3.3 times more likely than white people to be arrested in 2013; in 2010, that number was 2.8, according to the ACLU report.

South Carolina, the state with the highest number of possession offenses – an average of 454 per 100,000 for 2011-2012 on the local and state levels – also saw a decrease in arrest rates post-2010 despite black people being three times more likely to be arrested relative to white people between 2008 and 2012.

Turning to the data reported only by state police departments, the glaring racial bias is slightly diminished, with North Dakota – tied with Wyoming for the highest arrest rate reported by state police – showing the largest gap in arrest rates charted by race.

marijuana possession offenses per 100,000 by race (state police only)In Connecticut – one of the few states for which data were filtered by agency, allowing the separation of arrest rates on the local and state levels – the racial gap is barely visible in state police arrests, suggesting that the disproportionate rate of arrest for black citizens is largely perpetrated by local police departments.

Comparing the racial bias found in the ACLU’s data for 2010 with our own data for the subsequent period, we can see how the bias has changed over time.

For the most part, it appears that the overall decrease in arrests for marijuana possession has not favored any particular racial group. That is, the racial bias found by the ACLU has remained largely unchanged, despite the significant drop in overall arrest rates.

marijuana possession offenses per 100,000 over time, by race (on local and state levels)Homing in on the change in overall possession offenses by race since 2010, we see that the majority of states in this sample have substantially curbed the rate at which they arrest people of all races for possession of the drug, even while disparities across race persist.

change in black marijuana possession offenses per 100,000While black South Carolinians were 1.8 times more likely to be arrested than white citizens in 2001, that number increased to 2.8 in 2010, according to the ACLU, and averaged 2.98 for the 2008-2012 period. Meanwhile, their neighbor to the north demonstrated a slight decrease in racial disparity among arrestees between 2010 and 2011.

Decriminalization Makes It Harder to Track Marijuana Enforcement Data

The data we are able to report here do not tell the whole story of marijuana users’ clash with the law in this age of decriminalization and legalization.

Public opinion toward marijuana has shifted dramatically, particularly within the last several years. A few states have legalized possession of small amounts, while others have instead opted to reclassify possession of similar amounts from felonies to misdemeanors or from misdemeanors to civil infractions, to reflect this change in perception.

While this shift has been a laudable victory for advocates pushing for full legalization of recreational use, it has also resulted in increased difficulty in tracking important data. Finding the answer to a relatively simple question, such as, “How many people in this state were caught with marijuana in the year 2014?” has become all the more arduous. Researchers are forced to track down data for misdemeanors and felonies at the state level in addition to approaching individual law enforcement agencies directly for data on civil infractions, hoping they keep track of those numbers at all.

Consequently, the data reported here reflect only the marijuana possession offenses which are reported at the state levels; the number of civil infractions in states which have decriminalized possession are evidenced only by the significant drop in arrest rates (misdemeanors) following such a change in the law.

In California, the drastic drop in arrests between 2010 and 2011 is in large part due to a bill signed into law by then-Gov. Arnold Schwarzenegger which changed possession of up to one ounce of marijuana from a misdemeanor to a civil infraction effective January 1, 2011. As a result, the data provided by the state’s Department of Justice only reflect the following offenses: possession of any amount with intent to distribute, possession of more than 28.5 grams, possession of any amount on school grounds and possession of any “concentrated cannabis,” such as hashish. The total number of possession offenses is likely an order of magnitude higher than the data provided in response to the records request. State departments of justice don’t normally collect data on civil infractions, so finding the true numbers requires one to painstakingly request the data directly from each law enforcement agency in the state.

Still, the data for California, as is the case in several other states, revealed a glaring racial bias: Black people were more than seven times as likely to be arrested as white people, while the Hispanic/Latino population was arrested 2.85 times more than the white population.

A 2010 study published in the Journal of American Public Health found that white and black adolescents dealt marijuana at similar rates, and surveys collected by the ACLU in 2010 and by the Substance Abuse and Mental Health Services Administration in 2014 suggest there’s no statistically significant difference in marijuana use between white and black people.

california marijuana felony offenses per 100,000A report produced by the Drug Policy Alliance and ACLU of California looking at data on civil infractions for marijuana possession found that, in Los Angeles and Fresno, “black people were respectively cited for marijuana possession infractions 4.0 and 3.6 times more often than white people,” revealing that the imbalance appears to be substantially greater in felony arrests relative to civil infractions. The report concluded, “[t]he disparity is worse than the rates at which black people were arrested for possession of marijuana prior to 2011, when possession was a misdemeanor offense.”

A recent report by YouthFacts, which compares arrest rates by race and age in five states that implemented legalization or decriminalization laws, found similar results. The study, which aims to test the prediction that marijuana law reform will reduce arrests for juveniles and African Americans, compared the rate of change of arrest rates between 2008 and 2014. The results indicate that while overall arrests have dropped dramatically compared to pre-reform rates, racial bias persists:

“However, reforms have not reduced racial disparities in arrest rates. In three of the five reform states (Colorado, Washington, and Connecticut), disparities in arrests rates of blacks versus non-blacks remained roughly the same; in one (Massachusetts), disparities increased substantially; and in one (California), they fell. In states that did not reform marijuana laws, African Americans remained 3 times more likely than other races to be arrested for marijuana throughout the period.”

As Extract, a marijuana news site run by the Sun-Times, reported, decriminalization failed to reduce racial disparities in possession offenses in several major cities throughout the U.S. In Chicago, a heavy police presence in largely black neighborhoods has driven disproportionate arrest rates even in the wake of a city policy that gives officers the option of ticketing rather than locking up people caught with cannabis, the Sun-Times reports. On the other hand, Colorado is not only experiencing an increase in post-legalization juvenile arrests for marijuana possession, but a widening racial disparity among the underage smokers who are arrested, BuzzFeed reported. Another report from the Drug Policy Alliance, which compared the racial bias in marijuana possession arrests before and after legalization in Colorado, found that while the overall racial bias has remained the same, arrests at the county level vary wildly. And it revealed a striking racial disparity in arrests for public consumption of marijuana in Denver.

Dr. Harry Levine, a Professor of Sociology at Queens College whose research covers the effects of the war on drugs, refers to the state-level reports of misdemeanors and felonies as the “tip of the iceberg” when it comes to marijuana possession offenses, with unreported civil infractions comprising the much larger underbelly. Indeed, New York State’s Division of Criminal Justice Services reported 52,638 misdemeanor marijuana possession offenses in 2010; that same year, the ACLU got their hands on the data for civil infractions and reported the real total: 103,698.

If this pattern holds nationwide, it could mean that the shift in laws around the country – changes that reflect an emerging mass acceptance that marijuana use should not be criminalized – has had the unfortunate side effect of shielding from the public and policymakers who actually still gets busted, where and when. If so, it raises questions about whether advocates for the reform of marijuana laws would do well to skip the pit stop of decriminalization and set their sights on full legalization.

Taken as a whole, the new numbers obtained by Marijuana.com add to the debate about the effects of both prohibition and the decriminalization policies that advocates have succeeded in enacting in a growing number of jurisdictions, and the data (or in some cases lack thereof) shed light on the difficulty in tracking many of those effects.

Photo Courtesy of Allie Beckett.

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