Racial Justice and Legal Pot Are Colliding in Congress

The latest fight over criminal justice reform is over allowing felons access to newly legal aspects of the cannabis industry. Lawmakers are getting woke — slowly.

By JAMES HIGDON

Congressman James Comer stood in front of a local hemp harvest stacked shin-deep for hundreds of feet in every direction, a tangled mass of bushy branches that looked more like evergreen trimmings than marijuana buds. Little yellow butterflies flitted across the surface of the crop that filled the once-vacant warehouse with the comforting smell of damp grass clippings.

It was the middle of October, and aromatic plants represented the first harvest for Vertical, a California company that has already become a serious contender in the rapidly expanding legal cannabis industry. Comer, who just won reelection to Congress with 69 percent of the vote, has promoted hemp, the non-psychoactive sister plant to marijuana, as a jobs-creating crop to replace the state’s vanished tobacco industry. Hemp grown for CBD, a medicinal oil used for complaints from arthritis to epilepsy, fetches as much as $8,000 per acre, compared with less than $600 for the same amount of corn. This processing facility, Comer said, will create 125 jobs when Vertical has it fully operational, a not insignificant boost in a town of 2,600 people.

Vertical’s future, as well as the state’s infant hemp industry as a whole, rests in large part with the passage of the vast farm bill that Congress is expected to finish in the lame-duck session. Thanks to Senate Majority Leader Mitch McConnell, the bill includes an amendment that would permanently remove hemp from the list of federally banned drugs like heroin and cocaine, freeing hemp from the crippling legal stigma that has made it economically unviable for the past four decades. But that amendment also includes a little-noticed ban on people convicted of drug felonies from participating in the soon-to-be-federally-legal hemp industry.

Added late in the process, apparently to placate a stakeholder close to McConnell, the exception has angered a broad and bipartisan coalition of lawmakers, hemp industry insiders and religious groups who see it as a continuing punishment of minorities who were targeted disproportionately during the war on drugs and now are being denied the chance to profit economically from a product that promises to make millions of dollars for mostly white investors on Wall Street.

Legalization has made steady progress at the state level since California first approved medical marijuana in 1996. As of election night, 33 states now allow medical marijuana, and 10 states plus the District of Columbia allow fully recreational use. But at the federal level, a sizable headwind remains. Former Attorney General Jeff Sessions had vowed to enforce all federal drug laws; the position of his acting replacement, Matthew Whitaker, remains a mystery. And lawmakers like McConnell, who have discovered the economic benefits of relaxing prohibitions on products such as hemp, have nevertheless quietly found ways, like the farm bill felon ban, to satisfy the demands of their anti-legalization constituents, to the chagrin of pro-cannabis lawmakers and activists.

After POLITICO Magazine reported on the drug-crime felon ban in August, three senators—Cory Booker (D-N.J.), Rand Paul (R-Ky.) and Jeff Merkley (D-Ore.)—wrote to Senate leadership demanding the removal of the ban, citing its “disparate impact on minorities,” among other concerns.

“I think there’s a growing recognition of the hypocrisy and unfairness of our nation’s drug laws, when hundreds of thousands of Americans are behind bars for something that is now legal in nine states and something that two of the last three Presidents have admitted to doing,” Booker told POLITICO Magazine. “If we truly want to be a just and fair nation, marijuana legalization must be accompanied by record expungement and a focus on restorative justice.”

The fairness problems inherent in the felon ban are evident even in a predominantly white community like Cadiz. Vertical’s CEO is himself a felon. Todd Kaplan pleaded guilty in 2010 to tax evasion, but because his crime was not drug-related, he won’t be barred from participating in the hemp business.

But for many men in rural Kentucky, where illegal marijuana was a staple crop, the lifetime ban included in the proposed farm bill means they’re shut out of a growing industry in which they have have actual job skills.

“If you exclude him, you put him in that category where he might want to rob a bank or a Walmart.

If you ban him from the one thing he knows, what's left for him to do now?” a Kentucky felon and licensed hemp grower told POLITICO Magazine on condition of anonymity. “The thing is, when Mitch McConnell put that felon ban in, he didn’t follow Kentucky law that caps our ban at 10 years.

It should be why a felon should grow this crop, not why he shouldn’t. … If I was busted for moonshining, would it be illegal under the farm bill for me to grow corn?”

When I asked Comer about the felon ban at the ribbon-cutting for Vertical's hemp-processing plant in Cadiz, he said it was not something he endorsed. “I would not have added the language preventing anyone with a prior minor drug-felony conviction from being able to produce hemp. I support the basis for criminal justice reform as it pertains to the sheer quantity of senseless petty drug sentences.”

Comer, who approves of the House's plan to force work requirements on recipients of the food stamps program known as SNAP, said he understands a primary reason able-bodied adults aren't participating in the workforce is because of their criminal records. “I’m sure the language was added to appease certain senators,” Comer told me. “But it really goes against the direction our country is headed with respect to criminal justice reform related to minor drug offenses.”

But when I asked whether he will vote for the farm bill in spite of the felon ban he professes to dislike, Comer didn’t hesitate. “Yes.”

Even Kaplan, Vertical’s chief executive, agrees the felon ban doesn’t make sense. Ten years ago, Kaplan was a CEO of a health care company in the sleep apnea field. A federal prosecutor charged him with 137 counts of Medicare fraud, of which all but one count were later dropped. In 2010, Kaplan pleaded guilty to tax evasion and paid a $100 fine, according to court documents posted to his personal website. I asked him what he thought of the drug-crime felon ban in the farm bill.

“I live out here in California, and L.A. is doing something called a ‘social equity program,’ where if you were convicted of a drug crime, they’re putting you at the top of the list for licensing—and that’s for THC,” Kaplan told me by phone.

This once-radical notion that felons ought to gain priority for entry into a newly legal industry—instead of being shut out—has quietly gained bipartisan support on Capitol Hill, albeit not among Republican leadership.

In the House, this mounting opposition to the continuing punishment of felons first cropped up in September, when the Judiciary Committee passed its first pro-marijuana bill. It would expand access to scientific study of the cannabis plant, a notion agreed upon by marijuana’s supporters and detractors alike. However, Democrats almost killed the bill because it included language that barred felons (and even people convicted of misdemeanors) from receiving licenses to produce the marijuana. Felon bans are commonplace in legal marijuana programs. Every state has some version of it, but most of them have a five- or 10-year limit. But the felon bans in both the Senate’s farm bill and the House’s marijuana research bill are lifetime bans, and the House bill includes misdemeanors, too.

“Any restriction on misdemeanors goes in the exact contrary direction of the Second Chance Act,” said Rep. Jerry Nadler (D-N.Y.), who will become chairman of the Judiciary Committee in January.

His criticism was echoed by Steve Cohen (D-Tenn.), who sought to have the misdemeanor language struck from the bill until its sponsor, Matt Gaetz (R-Fla.), promised to address that language when it comes to the House floor.

In the Senate, the movement to protect the legal marijuana trade has taken the form of the proposed bipartisan Gardner-Warren STATES Act, which would maintain the status quo of federal non-interference in state-legal programs that was upended when then-Attorney General Jeff Sessions repealed the Cole Memo, an Obama-era document that outlined a hands-off approach to state-legal programs. Booker’s Marijuana Justice Act would adopt California-style principles and apply them federally, going far beyond the STATES Act, removing marijuana from Schedule I (defined as having no medical value and a high risk of abuse) and eliminating criminal penalties for marijuana.

But unlike other pro-marijuana bills, it would also deny federal law-enforcement grants to states that don’t legalize marijuana; direct federal courts to expunge marijuana convictions; and establish a grant-making fund through the Department of Housing and Urban Development for communities most affected by the war on drugs.

Booker’s bill has become popular among Senate Democrats. Ron Wyden, Kirsten Gillibrand, Bernie Sanders, Kamala Harris, Merkley and Elizabeth Warren have signed on as co-sponsors—a list that looks a lot like a lineup of presumed candidates for the 2020 Democratic presidential primary.

“For too long, the federal government has propped up failed and outdated drug policies that destroy lives,” Wyden told POLITICO Magazine. “The war on drugs is deeply rooted in racism.

We desperately need to not only correct course, but to also ensure equal justice for those who have been disproportionately impacted. People across America understand and want change. Now, Congress must act.”

Recent polling shows that Americans agree with Wyden—to a point. There is a widespread acceptance of legalizing marijuana. Gallup has been tracking this number since 1969, when only 12 percent of Americans believed in legalizing it; in October, Gallup put the number at 66 percent, the highest ever number recorded. Pew says it is 62 percent, also its highest number ever.

But there is far less acceptance of the idea that the war on drugs has had an adverse impact on poorer, minority communities, or that there should be some form of compensation in terms of prioritized access to the new industry. A poll conducted by Lake Research Partners, a progressive D.C.-based polling firm, earlier this year on the “Politics of Marijuana Legalization in 2018 Battleground Districts” found that 62 percent of the 800 likely voters surveyed agreed with the idea “we need legalization to repair the financial and moral damage of the failed War on Drugs.” However, when the pollsters added a racial component to this message—whether the respondents felt that the marijuana prohibition “unfairly target[s] and destroy[s] minority communities”—only 40 percent found that message to be “very convincing.”

While voters might doubt who has suffered because of laws against marijuana, there should be little doubt about who is benefiting from its legalization. In 2017, the North American marijuana industry was valued at $9.2 billion, and it is expected to reach $47.3 billion by 2027, according to Arcview Market Research and BDS Analytics. The excitement around marijuana investment is so high that even John Boehner, who as speaker of the House blocked the District of Columbia from implementing its legal marijuana program, has recently joined the board of Acreage Holdings, one of the largest vertically integrated cannabis operators in America. Just before Election Day, he penned an op-ed for the Wall Street Journal, which read in part: “I am now one of those Americans [who favors legal marijuana] …. Representatives must use what the people tell them to question constantly which policies are serving the greater good. It’s past time for government to rethink how it approaches cannabis.”

• By Derek Robertson

Witnessing such epiphanies, it’s little surprise then that many in the black community are suspicious of the motives of men like Boehner in the legalization lobby. Perhaps this is why many members of the Congressional Black Caucus have been slow to support marijuana legalization. But the CBC finally made its position on this issue clear in June when its 48-member caucus voted in an “overwhelming majority” to support policies beyond mere decriminalization: “Some of the same folks who told African-Americans ‘three strikes and you’re out’ when it came to marijuana use and distribution, are now in support of decriminalizing the drug and making a profit off of it,” CBC Chairman Cedric L. Richmond, a Democrat from Louisiana, said at the time. “The Congressional Black Caucus supports decriminalizing marijuana and investing in communities that were destroyed by the war on drugs.”

Arguments for legalizing marijuana haven’t been entirely persuasive to sway many in the conservative black community, but reframing it in the context of civil rights has brought many around to this new way of thinking.

“What is moving conservative black and brown folks is this idea that we’re on the horizon of marijuana legalization,” according to Queen Adesuyi of the Drug Policy Alliance. “So the idea is in order to do this in a way that is equitable and fair, you have to start on the front end of alleviating racially biased consequences of prohibition while we’re legalizing—and that means expungement, re-sentencing, community re-investment, and looking at where marijuana tax revenue can go, and getting rid of barriers to the industry.”

Now that Democrats have won control of the House, a co-founder of the Cannabis Caucus, Rep. Earl Blumenauer (D-Ore.), is poised to implement his blueprint for how the House under Democratic leadership would legalize marijuana at the federal level. Racial justice is front-and-center in that plan.

The memo he sent to Democratic leadership reads in part, “committees should start marking up bills in their jurisdiction that would responsibly narrow the marijuana policy gap—the gap between federal and state marijuana laws—before the end of the year. These policy issues … should include: Restorative justice measures that address the racial injustices that resulted from the unequal application of federal marijuana laws.”