When D.C. legalized the possession of marijuana in 2014, it was the product of a movement that, in many ways, was the first of its kind. “The campaign in D.C. was the first in the country that centrally focused on legalization as a racial justice issue,” says Michael Collins, director of national affairs at Drug Policy Alliance, a group that has been intimately involved in shaping the District’s marijuana policy over the years. “It’s not lived up to that promise.”
Collins places the blame for those failures squarely on the shoulders of Republican Representative Andy Harris. Every year since 2014, the Maryland congressman has proposed a rider to the House budget, explicitly blocking D.C. from taxing and regulating recreational cannabis. So while it’s legal to use marijuana in the District, it’s still illegal to sell it, and vendors have resorted to the “gray” market where they might sell a customer an $80 T-shirt and then “gift” them an ounce of marijuana.
But with Democrats back in control of the House, Harris didn’t even try to get his rider passed this time around, and while it remains to be seen what the Senate will do, District politicians are moving full steam ahead. In January, At-Large Councilmember David Grosso introduced a bill to legalize marijuana sales (which he’s done every term since he took office in 2013). Then in April, Mayor Muriel Bowser followed suit with a bill of her own.
Where the bills differ, they differ on policies that could shape the legacy of the War on Drugs in D.C. for years to come: on what will happen to the criminal records of people arrested for marijuana, and whether the people harmed most by the criminalization of drugs will go to the front of the line in the new industry or be actively kept out of it.
Meanwhile, advocates are fiercely debating whether either bill does enough to ensure the new source of wealth will be distributed fairly. There is no easy answer to that question, but the stakes are high if D.C. wants to avoid having people still go to prison for cannabis sales while the well off and well connected profit from them.
So the way the next few months play out could be decisive—not only for which demographics end up benefiting the most from legal cannabis, but for how the District reckons with the lasting harms of mass incarceration. “We have an opportunity on the front end to build an industry reflective of our values, rather than waiting 20 years to start asking questions about equity,” says Queen Adesuyi, policy coordinator for Drug Policy Alliance. “It’s not a huge ask. If anything, it’s an obligation to right the damage that’s already been done.”
One Cartel, Two Cartels, Old Cartels, New Cartels
While legal vendors get rich off the cannabis industry, will their underground competition keep going to prison?
Not long after cannabis became kind-of-legal in the District of Columbia, Lisa Scott was in business. “Someone knew I was a chef and asked if I knew how to make edibles. And I didn’t, but I figured it out,” she recalls. “We didn’t know what to do with them because we couldn’t sell them, so we threw a party… Hundreds of people showed up.” The challenge of running a growing company was exciting (as was the new income stream), but eventually, police started raiding other pop-ups, and she decided it wasn’t worth the risk. Not seeing a clear way to become a legal vendor, she got out.
Now, Scott is the president of the DC Cannabis Business Association, which advocates for small cannabis business owners. “There have been at least 100 vendors—people call them vendors, I call them ganjapreneurs—who have been doing the pop-ups and itching to get into the business legally,” she says. She believes letting them into the legal industry is a necessary “form of reparations.” Otherwise, she argues, there’ll be “people who have been arrested for possession or selling or whatever, while people with deep pockets are opening their own dispensaries and making money off it. Because the system is rigged for them.”
There’s never truly been anything “gray” about the gray market—it’s illegal, and anyone who operates a gray market business is risking a felony. In recent years, the Metropolitan Police Department started cracking down on the gray market, raiding pop-ups and making dozens of arrests at a time. According to MPD’s data, when marijuana first became legal to possess, the number of arrests for distribution and for possession with intent to distribute plummeted, from 622 in 2014 to 214 in 2015. But those arrest numbers quickly went right back up. And by 2017 (the last year for which data are available), arrests had surpassed pre-legalization levels by over 7 percent.
If and when recreational marijuana sales become legal in D.C., it looks like those arrests may continue to pile in. Neither Grosso’s nor Bowser’s bill changes the penalty for unlicensed sales of marijuana, and the mayor’s proposal explicitly bans “gifting.”
“The [mayor’s] bill’s a step in the right direction, but they need to legalize what’s already going on,” says Adam Eidinger, the co-founder of DC Marijuana Justice, a group advocating for cannabis users and growers. “It’s going to result in more incarceration. How do you protect the legal market? You crack down on the gray market.”
It’s not as if people selling weed illegally can go legal just because they want to. In the mayor’s proposal, the application fee for a hopeful entrepreneur is $1,000, and the minimum annual fee for a cultivator is 10 grand. Furthermore, the District would have near-complete discretion to deny people licenses and limit the number of cannabis businesses. So even if someone had the money, they might never get approved.
Betsy Cavendish, general counsel for the Executive Office of the Mayor, says the mayor’s office has been limited by a desire to avoid federal scrutiny—marijuana is still illegal at a federal level, and they don’t want the Department of Justice coming into D.C. She also says the mayor’s office is deliberately restricting how easy it is to get a license to balance entrepreneurs’ desire to get into the industry with critics’ concerns about oversaturation in certain areas. “This bill tries to really balance consumer demand for marijuana with neighborhood concerns,” she explains. “There are neighbors who are concerned about having these establishments in their neighborhood.”
In contrast, Grosso’s proposal would give the government substantially less leeway to deny people licenses whenever it chooses. While the community would still have input on where businesses open up, he tells City Paper that entrepreneurs would essentially have a “right” to get a license if they want one. “I’m not saying we should have a marijuana shop on every corner,” Grosso says. “We do this now with alcohol licenses. It’s not that complicated.” He says this is designed, in part, to open a path for current gray and black market vendors. “My hope here is that as we move forward with tax-and-regulate, we give people every opportunity to engage in the legal market, even people currently in the underground market,” he says.
Until gray and black market vendors transition to the legal market, under both proposals, they’d still risk criminal prosecution. Jason Ortiz, vice president of the Minority Cannabis Business Association (MCBA), says that there’s been a debate within MCBA about how jurisdictions should treat the underground cannabis market. On the one hand, he says, “we want to protect our people from undue arrests.” But on the other hand, he also wants to help people who are trying to run their business legally. Nevertheless, he thinks that since illegal cannabis businesses harm bottom lines, not human beings, the penalties should be changed accordingly. “When we’re talking about economic crimes, I think the answer is to have economic sanctions, rather than criminal ones,” he says.
“If someone was selling alcohol out of the back of a liquor store, would they get arrested?” he asks. “They’d definitely get a fine. They’d definitely have to go to court. But they probably wouldn’t get jail time. They probably wouldn’t have a SWAT team come in.”
But so long as cannabis remains an industry where a license is the difference between getting rich and getting jail time, Ortiz believes it’s perverse to keep the market closed off. “If you have a limited market and you’re using the criminal justice system to punish everyone else,” he emphasizes, “that’s a cartel.”
“Very Rich, White, and Male”
Will small businesses be able to break into the cannabis industry? Will those who have suffered the most under the War on Drugs be able to break in?
When Massachusetts legalized recreational marijuana several years ago, Shaleen Title was working as an attorney for legal cannabis businesses. But she wasn’t happy. “I didn’t like the people I was working for,” she says. “I didn’t like having to often advise small businesses or family-owned businesses that they probably didn’t have enough resources to even make it through the application process.”
So she left private practice and became a commissioner for the state’s Cannabis Control Commission, which handles regulation of the marijuana industry in Massachusetts. She says that big businesses and those established in the medical industry have a leg up in the more lucrative recreational market, but that the Commission has “tried to offset that by having a lot of types of licenses,” like microbusinesses and craft cooperatives. She says the state’s also started a number of programs to ensure people affected by the War on Drugs can easily access the industry. If someone lives in “areas disproportionately affected by criminalization,” has a drug conviction, or has a parent or a spouse with a drug conviction, they can receive technical assistance and fee waivers. Massachusetts also implemented priority applications, Title says, where people disproportionately harmed by prohibition “get their applications reviewed first.” Lastly, they’ve recently approved two types of licenses—for delivery and for social consumption (i.e. a cannabis bar)—that will give a head start to people directly impacted by criminalization. For the first two years, only those eligible for the priority application programs (and, in the case of cannabis bars, microbusinesses and cooperatives) will be able to run delivery or social consumption operations.
Scott is disappointed that so far, no D.C. proposal has created a way for “small and microbusinesses” to get in the game. “If they rolled it out and said you can get a micro business license for $420, anyone can afford that,” she says. “There’d be no excuse to be in the black market.” She points to Massachusetts as a model, where there are eleven different tiers of licenses for marijuana cultivators, ranging from tiny businesses to huge operations.
Cavendish says the mayor’s bill doesn’t make room for microbusinesses due to concerns about safety—she argues the city doesn’t yet have a regulatory regime ready to monitor scores of small businesses selling their own products. “One of our top concerns is consumer safety,” she says. “It’s very difficult to having a testing regime in place [to detect contaminants in products] for mom and pops.”
“But there will be jobs,” Cavendish says, “if some of those small entrepreneurs want to go work in house at a manufacturer.”
Grosso’s bill similarly doesn’t provide licenses for small businesses that can’t afford the same fees as the big dogs (his fees are somewhat lower than Bowser’s, though). However, it contains several programs and provisions designed to move people affected by the War on Drugs toward the front of the line. Under his bill, “applicants who are African-American, long-time District of Columbia residents, formerly incarcerated, or otherwise appropriate for special consideration” would receive priority in the application process. The proposal would also establish a business incubator and technical assistance programs meant to bring “the benefits of marijuana legalization and regulation to those formerly harmed by criminalization.”
The mayor’s bill includes no such proposals. Cavendish says that when discussing the best way to repair the harms of criminalization, policymakers shouldn’t overly focus on the cannabis industry. “Along the lines of reparations, let’s not just focus on this bill,” she says. “There are loads of programs in the District,” like the READY (Resources to Empower and Develop You) Center, launched in February to help returning citizens find housing and employment.
The mayor has also advanced one major idea for increasing access to the local cannabis industry, which several advocates praised in conversations with City Paper. Under her bill, District residents would need to have at least 60 percent ownership of every new marijuana establishment.
Adesuyi, however, doesn’t think this goes far enough. “There’s no effort to prioritize things like having been impacted by the War on Drugs,” she says. “The mayor just was not bold on this. This is the most lackluster bill ever… It’s really up to the mayor to be intentional to make sure that D.C. spearheads the effort to end criminalization in a way that’s just and equitable.”
Uneeda Nichols—an activist who teaches women to grow their own (legal) cannabis and the founder of gray market catering company DC’s Sweet Sensations—is frustrated to see who’s been able to profit from the cannabis industry. “I grew up during the War on Drugs. Everybody that came into D.C. is making more money than I am. And I’m from D.C.,” she says. “People like me aren’t going to stand a chance. I’ll be just like a street hustler. Because I don’t have the resources or people to back me.”
Will the District try to open doors for people with felony marijuana charges, or shut them out?
Nichols’ catering company isn’t operational anymore. In 2017, the police raided her business. They confiscated her wares, gave her a felony charge, and threw her in jail. “I sat in that jail all weekend,” she says. “With a rat.” After months of court dates, the charges were dropped, but she says she lost everything in that raid—2017 was before gray market raids were status quo, so she didn’t expect it, and she’d invested a ton of money in the business only to have it all taken away. But compared to those arrested during the peak of the War on Drugs, she got off easy. She’s advocating for the city to do everything it can to repair the harm done by criminalization: “I know so many people who can’t get homes—can’t get apartments—because they got drug charges.”
Under the mayor’s bill, anyone who’s ever had a felony drug conviction would be explicitly prohibited from owning a marijuana establishment.
Cavendish defends that exclusion. “The restrictions on [cannabis] businesses are very similar to restrictions on who owns bars,” she argues. (People with recent felonies can’t get liquor licenses. Unlike with cannabis, though, they can get licensed if it was at least 10 years ago.)
People with felony convictions would be allowed to work for marijuana businesses—unless the felony happened in the past five years, in which case, cannabis businesses wouldn’t be allowed to hire them.
The Minority Cannabis Business Association has advocated for sweeping change to try to repair the harm done by criminalization, not only including people with felony marijuana charges in the marijuana industry, but also expunging all cannabis-related convictions and making it so those drug charges can’t affect things like housing and credit reports.
“We’re allowing people now to cultivate felony amounts [of marijuana] in the medical industry,” Ortiz says. “Part of this conversation has to be admitting that the War on Drugs was wrong, it was a mistake, and it was racist.”
Grosso was also sharply critical of Bowser’s felony exclusion: “That to me just flies in the face of what we’re trying to do here.”
“If [the final proposal] doesn’t include strong supports for righting the wrongs of the War on Drugs, I won’t vote for it,” he says, and he says he’d encourage his colleagues to do the same.
Grosso’s bill would not let the city discriminate against applicants for prior drug charges, and would also expunge all records related solely to marijuana arrests and convictions. “If we’re going to take the approach to repair the harm done by the War on Drugs, which had a disproportionate impact on African Americans in the District of Columbia,” he says, “then I think we need to go all the way.”
The mayor’s bill takes some important steps to erase the literal record of mass incarceration, but it would leave people working in the pre-2019 recreational cannabis industry out to dry. Her proposal would seal records for possession of marijuana (although not expunge them, so they’d still be accessible to the courts and law enforcement). However, it wouldn’t affect charges related to distribution or possession with intent to distribute. This means that if and when selling weed becomes legal in D.C., lenders, employers, and landlords alike would all still be able to see someone was arrested for selling it decades ago.
Collins says the mayor’s bill is “a good first draft… I think she’s moving in the direction of racial justice.” But he thinks it’s critical that D.C. legislators stop treating people who sold marijuana, before it was legal, like criminals; let people currently in the underground market into the legal market; and put those who’ve been harmed by racist policing and decades of criminalized weed “in the front of the line for the benefits of legalization.” His colleague Adesuyi, who works closely with Congress on marijuana legislation, thinks D.C. politicians may need to add more of these provisions if they want Democratic members of Congress to go to bat to defend it. “That’s the tune people are dancing to in Congress,” she says.
“There’s so much room to make this a more bold attempt to bringing justice to D.C. In a place where people want it. Where Council is ready to do it,” Adesuyi emphasizes. “D.C. has everything it needs to lead the nation when it comes to legalizing marijuana in a way that includes the people who bore the brunt of criminalization.”