Will marijuana decriminalization stop DC’s racially skewed arrests?

Marijuana decriminalization takes effect in the District of Columbia today. But will the measure be enough to bring down DC’s racially skewed arrest rates?

The DC City Council earlier this year approved one of the most relaxed decriminalization laws in the country. The law authorizes a $25 civil fine for possessing one ounce or less of marijuana and allows cops to seize the drug. It also prohibits public pot use with the threat of a 60-day jail penalty. Harsher penalties kick in for someone possessing larger amounts of pot.

The goal, according to advocates, is to reduce massive racial disparities in DC’s arrest rates. Although black and white Americans tend to smoke pot at similar rates, an ACLU report found that black DC residents were eight times more likely to be arrested than white residents in 2010. DC’s overall arrest rate for pot possession was also among the highest in the nation at 846 arrests per 100,000 residents, compared to an average of about 241 per 100,000 around the country.

The data cited in the ACLU report, however, also raises questions about whether decriminalization always evens out racial disparities in marijuana arrest rates. In the states that decriminalized pot by 2010, the arrest rate was nearly 254 per 100,000 and black people were nearly 3.6 times more likely to be arrested. Among the states that kept criminal penalties, the numbers were about the same: the arrest rate was 237 per 100,000 and black people were nearly 3.7 times more likely to be arrested.

Decriminalization’s success varies from state to state
Seema Sadanandan, program director at ACLU of the Nation’s Capital, says it’s difficult to compare different states’ decriminalization laws. Different states can allow possession of anywhere between one bag of marijuana to 20 plants, with fines ranging from as low as $25 to hundreds of dollars. There’s also varying levels of enforcement: in some states, cops completely relax their approach to marijuana, while other jurisdictions find loopholes in laws to continue carrying out penalties.

New York, for instance, decriminalized marijuana in 1977, but, as of 2012, the state held one of the highest arrest rates for pot possession. The problem: New York’s law contains an exception for marijuana that’s within public view, which allows cops to arrest people who show the drug in public. New York police officers use that exception to arrest people, particularly minorities, by getting them to empty their pockets during searches and expose marijuana that would otherwise remain hidden.

Mark Kleiman, drug policy expert at UCLA, cites New York’s case as an example of how decriminalization can fail to reduce racially lopsided enforcement.

“If you think it’s actually racism, then what you’d expect is the cops will figure out some other reason to arrest those black kids,” Kleiman says. “You have to ask when you do this, how will law enforcement react?”

There are certainly other reasons to believe DC’s criminal justice system is racially skewed in ways beyond marijuana possession. Black people make up slightly more than half of DC’s population, but a 2013 report from Washington Lawyers’ Committee for Civil Rights and Urban Affairs found black residents make up eight out of 10 arrests overall, seven out of 10 traffic arrests, nearly eight out of 10 arrests for disorderly conduct, and eight out of 10 arrests for non-aggravated assaults.

Still, there’s some reason to believe that marijuana possession penalties are particularly exploitable. It’s much easier to prove a drug possession charge, where physical evidence is more readily available, than more complicated charges such as assault or robbery, where evidence might be much more circumstantial.

Some states can claim success with decriminalization. The ACLU found Massachusetts reduced its arrest rate for pot possession by nearly 90 percent between 2001 and 2010, after it decriminalized pot in 2009. If DC, which modeled its decriminalization law after the one in Massachusetts, achieves similar results, it would get rid of at least one type of crime that’s enforced in a manner that targets minorities more often than not.

Tony Newman of the Drug Policy Alliance argues that the inconsistent success rate of decriminalization is one reason his organization supports full legalization, which would remove all penalties related to pot. After Colorado legalized pot, the Denver Post reported that case filings related to marijuana plummeted.

DC voters, for their part, may get a chance to vote on legalization this November. The measure would legalize possession, growing, and gifting for DC residents 21 and older — but not sales, because voter initiatives in DC can’t address that issue. A Washington Post poll from January found marijuana legalization is favored by DC residents almost two-to-one.