Charlotte Resing, Policy Analyst, Washington Legislative Office

Marijuana has been a key driver of mass criminalization in this country and hundreds of thousands of people, the majority of whom are Black or Latinx, have their lives impacted by a marijuana arrest each year. But the tide is turning against the remnants of a drug war targeted at Black and Brown people that was never meant to increase public safety in the first place. Legalization is an important step towards ending the war on drugs, and it cannot come soon enough.

Legalizing marijuana must come with expungement, with reinvestment in the communities most harmed by enforcement, with limitations on how police can interact with people who they suspect of a marijuana offense, with legal nonpublic spaces for smoking marijuana for those who cannot smoke in their residence, with a prohibition on deportation for people with marijuana convictions, and with full inclusion of those most impacted by criminalization of marijuana in the new marijuana industry.

Currently, nine states and the District of Columbia allow for recreational use among adults, while 31 states allow for medical use of marijuana. The laws reflect growing public support. Two out of three Americans are in favor of legalization, which has majority support in all age groups and political affiliations.

While progress in reforming our nation’s drug laws is vital, we must remember that if we legalize without righting the wrongs of past marijuana enforcement, we risk reinforcing the decades of disproportionate harm communities of color have faced and endured. People in the United States use and sell marijuana at roughly the same rate regardless of their race, yet a Black person is almost four times more likely than a white person to be arrested for marijuana possession nationwide. In addition, roughly 13,000 people were deported or separated from their communities and families in 2013 alone for drug-related offenses.

While it is not a panacea for past harms, thoughtful legalization can help us forge a more equitable future.

Today, overcriminalized communities continue to suffer from the fallout our nation’s drug laws, even in states that have legalized marijuana and seen dramatic drops in the number of people arrested for marijuana crimes. That’s because legalization has not eradicated the indefensible rate at which Black and Latinx people are arrested for marijuana offenses in these states. In fact, many states have seen an even steeper rise in the percentage of Black and Latinx people having their lives impacted by a marijuana arrest. Two years after decriminalization in the nation’s capital, a Black person is 11 times more likely than a white person to be arrested for public use of marijuana.  

This is one of the main reasons enforcement is key to reform. When it comes to drug law reform, policing, which more rightly can be titled over-policing, is at the headwaters of the injustices communities of color suffer.  We must address, combat, and eventually eliminate discriminatory policing practices and the structural racial bias at every step of our criminal legal system. Legalization measures must have equity as a vital component to avoid continuing to harm certain and to address the years of hardship and stigma that criminalizing marijuana has wrought.

Along with the harm of incarceration and conviction, a simple marijuana charge has a negative ripple effect.

Having a marijuana conviction on your record can make it difficult to secure and maintain employment, housing, or secure government assistance for the rest of your life. This is why clearing people’s records of marijuana convictions is a necessary addition to any legalization measure. If we believe that marijuana is not worthy of criminal intervention, then it is only right we stop the suffering inflicted on people by a marijuana prosecution. Especially since we know this disproportionately falls on the shoulders, and families, of low-income communities and communities of color.  

Such efforts to extend racial justice must explicitly be tied to a program of economic justice.

People who have been harmed by the enforcement of marijuana must have a place in the bourgeoning marketplace created by legalization. Indeed, any legalization bill should include provisions that enable people who have struggled to find employment due to a marijuana conviction to participate meaningfully in the marijuana industry. Excluding people directly impacted by marijuana criminalization from the industry further entrenches the outsized impact that the war on drugs has had on communities of color.

If we legalize without mindfulness of the full ecosystem of the criminal legal system and how it impacts people, then corporate and industry-backed legalization efforts will lead us away from what is right and just. That is why we must support legalization legislation that truly help roll back overcriminalization, end the failed war on drugs once and for all, and usher in a more equitable future through drug law reform nationwide.

Andrea Woods, Staff Attorney, Criminal Law Reform Project & Alex Rate, Legal Director, ACLU of Montana

Around 9:20 p.m. on Sunday, April 23, 2017, Eugene Mitchell, Shayleen Meuchell, and their four-year-old daughter were in bed at their home in Lolo, Montana, when they heard a violent crash. “It sounded like a truck had driven straight into our house,” Mitchell later said. In a surreal flash, armed bounty hunters kicked in the front door, broke into the bedroom, pointed assault rifles and pistols at the family, and shouted at them not to move.

The bounty hunters terrorized the Montana family. But the trauma and harm did not end there.  

The bounty hunters arrested Mitchell, drove him to another county about an hour away in handcuffs, and eventually surrendered him to the jail, all despite not having a valid warrant for his arrest. The entire family remains shaken by the experience, and the damage to their property—which they cannot afford to fix—has caused a dramatic increase in their utility bills.

The bounty hunters were sent to arrest Mitchell not by police; they were hired by a bail bondsman. That past January, Mitchell was in jail related to a driving with suspended license charge, he could not afford his $1,670 bail, and so he used a commercial bail bondsman to secure his own release and return to his family and return to work to support them. When Mitchell accidentally missed a court date that April, his bail bondsman immediately activated a network of bounty hunters to search for and apprehend him.

The bounty hunters staked out the family’s home for two days prior to the attack while Mitchell was out of town doing construction work. During that time they frightened Meuchell—who was home alone with their two small children—and held a friend and her daughter up at gunpoint when they stopped by the house.

All this was over a small bail bond related to minor misdemeanor charges. And this story is far from isolated. In fact, it is common. Predatory and exploitative behavior on the part of bail bonds agents is not only widespread throughout the country, but is directly incentivized because of how the for-profit bail industry operates.

The players in this industry not only deal in trauma and mete it out, they profit from it.

The most recognizable presence of the for-profit bail industry is the estimated 25,000 local bail agents going to local jails, entering contracts with arrested individuals, and bailing them out. Yet, behind these agents are primarily nine large corporations—insurance companies who make money off of the millions of people each year who cannot afford to pay their full bail requirements. Each year, these companies make an estimated $2 billion in profits by keeping just 1% of total bail bonds backed across the country: such profits require millions of people and their families to be subjected to unaffordable bail amounts.

Under the terms set by the insurers with their bail agents, these huge companies face little to no financial risk to themselves. Rather, they require bail bonds businesses to shoulder any costs or losses. This means that even a single forfeiture—where the court keeps the full amount of bail deposited, usually because an individual missed a court date without returning during a set timeframe—could put a bail bonds agent out of business.

These high stakes from insurance companies push bail bondsmen to resort to extreme measures, including using bounty hunters (or, as they often call themselves “fugitive recovery agents”) to protect against financial losses. AIA Holdings, Inc., which was the parent company of the insurance companies backing Mitchell’s bond, expressly acknowledges the pressures to engage in bounty hunting. For example, a blog from AIA glamorized a bounty hunting effort by saying it “illustrates the forces that come into play when a defendant disappears while out on bail and a pile of cash is at stake.”

The commercial bail industry profits off people faced with the impossible choice between sitting in jail or entering coercive contracts with bond agents. Furthermore, the industry fortifies structural racism. People of Color—particularly Women of Color—suffer the worst financial harms. And these companies exact further harms by serving as a roadblock to positive change: employing lobbying groups like the American Bail Coalition to spread fear-mongering misinformation, attempt to stymie reform, and to preserve their fiscal bottom line. Only the United States and the Philippines allow a commercial bail industry to exist.

The exploitation insurance companies perpetuate depends on our abusive money bail system. And our punitive, dysfunctional bail system is the key driver of our mass incarceration crisis. The truth is we don’t need profit motives to ensure a fair and safe pretrial justice system. In fact, actual “fugitive” status is incredibly rare, and the majority of people present no threat of violence if released pretrial.  

The ACLU envisions a pretrial justice system that ensures speedy—and free—release to nearly everyone. There is no room for predatory profit motives in the world we’re working towards. That’s why we are fighting, with a vibrant movement of partners, to eliminate the for-profit bail industry and suing to hold companies accountable for what they did to Mr. Mitchell and his family.

By Bobby Hoffman, Advocacy & Policy Counsel, Voting Rights , ACLU

At the founding of our nation, women, African Americans, those who were unable to read or write, poor people, and individuals with felony convictions were excluded from the ballot box. Over the course of our nation’s history, the right to vote has expanded to include African Americans and women. Additionally, poll taxes and literacy tests have been banned. As a result of felony disenfranchisement, six million people are still unable to vote because they are incarcerated, completing probation or parole, or are precluded from voting for having a felony conviction in their past.

Last year, the ACLU worked hard with many in-state groups in Florida to pass a ballot measure that amended the state constitution and restored voting rights to 1.4 million people with a felony conviction. The prior law, a Jim Crow-era relic intended to disenfranchise Black people, meant that even after completing probation and parole, people still weren’t restored as full member of our citizenry.

As we looked toward the 2020 presidential race to create a Rights for All platform, we wanted to push candidates to create a country where the right to vote was permanent. Where no citizen is deprived of the right to vote because of a conviction, whether or not they are incarcerated.

That’s why we’re asking all presidential candidates to end unjust laws that strip citizens of their fundamental right to vote due to criminal convictions, because we all — including those who are currently incarcerated — must have a voice in how we shape our society.

Voting is a fundamental right and the cornerstone of our democracy. Denying the right to vote to an entire class of citizens undermines our democracy and makes our society less inclusive. That is why we’re advocating that the right to vote should be preserved and should never be taken away from citizens as punishment.

We know people of color are disproportionately impacted by felony disenfranchisement. Many of these laws were passed during the Jim Crow era with the intent to bar minorities from voting. Disproportionate numbers of people of color continue to be prosecuted, incarcerated, and disenfranchised due to these laws. As of 2016, one in every 56 non-black voters lost their right to vote. Conversely, one in every 13 Black voters was disenfranchised.    

We also know that voting plays an important role in helping individuals with felony convictions return to society. Studies have shown that when individuals with a felony conviction participate in the democratic process, they have a lower rate of subsequent arrest. By denying people even the basic right to vote, we are only preventing them from having a stronger stake in their community and making it harder for them to successfully return to society.

This policy is not new. We already let those who are incarcerated vote in two states — Maine and Vermont — as well as Puerto Rico. Additionally, the concept of voting while incarcerated is quite common internationally. Canada, Ireland, Israel, South Africa, and many other countries do not place restrictions on voting for people who are incarcerated.

As the presidential race heats up, our volunteers are fanning out across the country to ask candidates if they support this policy. One of our activists in Iowa was able to get Bernie Sanders on the record agreeing to ensuring everyone can vote, and another spoke to Julian Castro who agreed to restore voting rights to those in prison and jail depending on their conviction. We will continue to question and push candidates to be bolder to ensure our next president will protect and advance the civil liberties and civil rights guaranteed to all of us in the Constitution, especially the right to vote.