Merrick Garland, cannabis policy, and restorative justice

Nominee for U.S. Attorney General, Merrick Garland, during his swearing in confirmation hearing before the Senate Judiciary Committee, Washington, DC U.S., February 22, 2021.  Demetrius Freeman/Pool via REUTERS

During his confirmation hearing this week, attorney general nominee Merrick Garland spoke openly about his views on cannabis enforcement in the United States. Although he took a stand similar to his predecessor, William Barr, that low-level cannabis crimes would not be a priority of the Justice Department, Judge Garland went further, highlighting the inequities in the system and the socioeconomic effects of those law enforcement efforts. If confirmed, Mr. Garland has the opportunity to transform the nation’s relationship with cannabis, but a series of important steps are necessary to achieve that goal.

Sen. Cory Booker (D-N.J.) asked Judge Garland about racial disparities in law enforcement general and in cannabis enforcement specifically. Mr. Garland seized on the latter, stating:

“The marijuana example is a perfect example. Here is a nonviolent crime that does not require us to incarcerate people and we are incarcerating at significantly different rate(s) in different communities. That is wrong and it’s the kind of problem that will then follow a person for the rest of their lives. It will make it impossible…to get a job and will lead to a downward economic spiral.

“We can focus our attention on violent crimes and other crimes…and not allocate our resources to something like marijuana possession. We can look at our charging policies and stop charging the highest possible offense with the highest possible sentence.” 

Judge Garland recognized two realities about cannabis enforcement—one not new to AG nominees, the other quite new. First, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources. There are plenty of other crimes that the Justice Department should be focused on. Second, he noted that cannabis law enforcement disproportionately impacts communities of color, and more importantly, that the effects of those arrests impact individuals’ economic potential and livelihoods.

The latter is a stark departure for top-level presidential appointees. Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one. Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system. It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty.

Mr. Garland committed to diverting Justice Department resources away from non-violent cannabis enforcement. That step and statement is an important one; however, it is insufficient, and as a federal judge, Mr. Garland knows that. His efforts must go further than that commitment. The vast majority of more than the half-million annual cannabis possession offenses take place at the state and local levels—beyond the direct reach of the Attorney General’s ability to influence the Justice Department’s priorities.

A new approach to cannabis and restorative justice

The Justice Department could commit to studying the issue of law enforcement best practices regarding cannabis policy in the states. That conversation must begin with the understanding that cannabis use between whites and non-whites is equal, but that non-whites are disproportionately more likely to be arrested for cannabis offenses. For example, Black Americans are almost four times more likely to be arrested for cannabis offenses than are White Americans.

Next, Mr. Garland clearly recognizes that equity in the enforcement of cannabis laws requires leadership at the federal level. Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders. By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.

The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities. The attorney general can work with groups to improve the manner in which law enforcement and state and local leadership address both the way in which cannabis enforcement operates in the future and how to make up for past harms.

And last but not least, the Justice Department could lead the way on restorative justice, primarily through clemency. However, presidential clemency efforts for cannabis will have limited impact, given how few individuals face such charges at the federal level.  Given this the attorney general can encourage the use of presidential and state-level clemency powers. He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others. That proposal urges President Biden to pardon non-violent cannabis offenders. That recommendation is an important one that will signal the new president’s views on drug policy and demonstrate a change in his approach to law enforcement policy since the 1990s. It will also honor his commitment during the Democratic debates that cannabis users should not face jail time.

The attorney general and President Biden should seek to coordinate with like-minded governors of both parties to exercise far-reaching pardon powers to the victims of the War on Drugs. A Rose Garden ceremony to exercise presidential pardon power, while virtually assembling a bipartisan group of governors doing the same would be a substantively impactful effort that would improve the lives of hundreds of thousands of Americans, far beyond what the president can do alone.[1]

Taking a first step toward restorative justice is important given the racist roots and implementation of the War on Drugs. In the current economic environment, it is even more critical. In the wake of COVID-19, which has disproportionately impacted Black and brown America, and an associated recession that hit communities of color harder than white Americans, improving the labor market prospects of the victims of the drug war is essential. And while more must be done to reinvest in and rehabilitate these communities, that effort must begin with the pardon power.

Judge Garland’s words on systemic racism, the War on Drugs, and the long-term impact of cannabis arrests on Americans are inspiring. The test now is whether, if confirmed, he maximizes the formal and informal powers of the office to translate his confirmation hearing comments into impactful, lasting policy reforms.