The Persistent Impact of the War on Drugs in Federal Marijuana Policy
By Rosie Fatt
Marijuana laws have changed rapidly over the past decade, and recreational use has been legalized across many states. Recent data show that there are now more Americans who smoke or ingest marijuana daily than those who drink alcohol. Marijuana, however, remains a federally controlled substance scheduled under the Controlled Substances Act. As the country moves into an era where drug-related sentencing and incarceration become less punitive, we must also couple these advancements with restorative actions to repair the harm done to communities, particularly communities of color who have been disproportionately affected by these policies.
Over the last 50 years, criminal penalties and mandatory minimum sentences for drug possession and certain trafficking offenses have caused an explosion in the incarcerated population. Initiated in the 1980s during the Reagan administration, the War on Drugs has led to ongoing punitive punishments and mass incarceration for drug offenses that disproportionately impact communities of color. Even as federal policy around drug possession changes — particularly around marijuana — the inequitable impacts of past “tough on crime” policies persist, with drug arrests more often impacting Black, Latino, and Indigenous people and people with low incomes.
Despite similar usage rates, Black people are approximately four times as likely to be arrested for marijuana possession than white people. Nearly 75 percent of people in federal prison and almost 55 percent of people in state prison for drug offenses are Black or Latino. According to a report from the United States Sentencing Commission, the number of people federally sentenced for simple possession of marijuana decreased to only 145 in fiscal year 2021 (compared to 2,172 in fiscal year 2014). The commission, however, still disproportionately uses prior sentences, at the federal and state level, for simple marijuana possession in its sentencing calculations. This creates a means by which people are still punished for this offense with disproportionate consequences for people initially impacted and targeted by the War on Drugs. At the same time, federal funds have supported ineffective harm reduction policies and used punitive approaches to drug treatment.
Progressive steps must include developing policies that are driven by impacted communities and formerly incarcerated people and are responsive to their experiences and needs. Recently, the Drug Enforcement Administration (DEA) solicited comments on a proposed rule to reschedule marijuana from a Schedule I to Schedule III controlled substance. Rescheduling is a step in the right direction, but it would leave most of the harms and racial disparities associated with criminalization unaddressed. As The Leadership Conference on Civil and Human Rights noted in its comments to the DEA, a fully restorative policy approach requires full descheduling. Marijuana must be legalized with a focus on a racial justice framework that includes remedies such as expungements and resentencing to repair the damage of prohibition and punishment. Further, federal money must be reinvested and focused on the communities most harmed by the War on Drugs.
The Vision for Justice platform, developed by The Leadership Conference and Civil Rights Corps, presents an alternative solution that prioritizes impacted communities. The platform explains that providing more resources — like high-quality health services, well-resourced schools, good-paying jobs, and affordable housing — is what keeps communities safe. Further, investing in community safety models that shift power into the hands of communities most impacted by policing and criminalization is a necessary part of the solution.
Moving forward, federal drug policy requires acknowledging and affirmatively working to repair communities impacted by the War on Drugs. The federal government has made progress in its approaches to drug scheduling, prosecution, and sentencing. Still, as it does so — and particularly around marijuana — it must also incorporate strategies that acknowledge, restore, and uplift the communities most impacted by its prior policies. The forward-looking vision is a future where every voice is heard, every right is protected, and every individual is free to live without fear of discrimination or oppression.
Rosie Fatt was a summer 2024 legal intern at The Leadership Conference on Civil and Human Rights.