July 10, 2021

Confronting the unintended consequences of marijuana legalization

Dear PERF members,

Sometimes there is a disconnect between what may seem like sensible public policy and the unintended consequences of those actions. Such is the case with the legalization of marijuana, which seems to be sweeping the country.

Very few police chiefs today would say that arresting someone for possession of a small amount of marijuana makes much sense. But the rapid shift in marijuana laws is putting police in an untenable position when it comes to public safety and community expectations. 

Some of this is the result of sloppy implementation of new laws. Another factor is that legalized marijuana is crashing into community concerns about crime and the quality of life in their neighborhoods. This chasm is especially apparent in urban communities where the violence associated with drugs – including illegal marijuana operations – remains a major concern.

Increasingly, police chiefs and officers find themselves caught in the middle, dealing with the consequences of decisions by lawmakers that aren’t always well thought out or that don’t take into account their full impact on all communities.

First, some background ….

On July 1, laws went into effect legalizing recreational marijuana in Connecticut and Virginia, and legalizing medical marijuana in South Dakota. Two days earlier, recreational marijuana legalization took effect in New Mexico.

With those changes, about 44% of the U.S. population now live in states that have legalized recreational marijuana.

And it’s not just happening in the United States. On June 28, Mexico’s supreme court ruled that laws prohibiting personal consumption and cultivation of marijuana were unconstitutional. In 2018, Canada became the first major world economy to legalize recreational use of marijuana. So now, our neighbors to the north and south have legalized it as well.

The new U.S. laws come at the end of two decades when public opinion about legalization of marijuana has changed dramatically. Twenty years ago, roughly 1/3 of the U.S. population favored legalization. Today, 60% of people, including the majority of every age group under 75, say it should be legal for recreational and medical use. Another 31% say it should only be legal for medical use. 

Dealing with Different Community Expectations

Assuming that the United States (and North America) will probably continue to move toward legalization, it’s in everyone’s best interest if we do so thoughtfully.

But I’m not sure every state has been careful about their implementation. New York State, which legalized recreational marijuana on March 31, is allowing people to smoke marijuana anywhere they’re allowed to smoke cigarettes. That means the NYPD has instructed its officers not to intervene if people are smoking marijuana on the sidewalk or on their front stoop, although it’s still forbidden in parks and on beaches.

NYPD Commissioner Dermot Shea expressed concern about this part of the New York law, because his department receives many thousands of complaints each year about people smoking marijuana in public. “I don’t know what we’re going to be telling New Yorkers when they call up and say there’s people smoking in front of my house or apartment building,” he said. “Or I take my kids to a parade, and there are people smoking marijuana next to me as we try to enjoy the parade.”

What is the cop on the beat supposed to do in these types of situations? At a time when public support of the police is in question, do we really want to put officers in situations where they’re perceived as being unresponsive to the concerns of the community?

And what should police do when the concerns of the cannabis-using community are in conflict with the concerns of those who prefer not to be exposed to marijuana?

Marijuana-Related Violence

An even more serious problem is the violence associated with illegal marijuana sales, which are still occurring – even thriving – in states that have legalized marijuana. We don’t exactly know what impact legalization is having on the illegal marijuana trade, but what may be happening in some areas is that the introduction of legal marijuana is fueling even greater competition among illegal growers and distributors, which in turn is contributing to continued violence.    

This issue was raised by several police chiefs at PERF’s 2019 meeting with prosecutors and police chiefs.  At that meeting, then-New York City Police Commissioner James O’Neill said the NYPD tracked the circumstances of all homicides in the city, and about 25 percent of them were connected to drug distribution, with many of those cases involving marijuana.

Baltimore Police Commissioner Michael Harrison added, “I can’t tell you precisely how many of our murders and nonfatal shootings are marijuana-related, but I know that many of them are a result of marijuana drug deals that go bad.”

More recently, marijuana-related violence has been cited in the sharp increases in homicides and shootings of 2020-21. Nashville Police Chief John Drake told us that a 26% increase in homicides in his city was due in part to marijuana disputes. “Some of it is territorial gang activity. A lot of it is around drugs. We’ve seen a lot of homicides involving marijuana drug rip-offs, where there’s marijuana and cash in the house,” Chief Drake said. 

I also heard about an alarming situation in Oakland, CA. During some of the demonstrations of last year, and again on Election Night, November 3, marauding gangs attacked retail stores, especially cannabis stores. It appeared that the gangs were targeting their attacks to nights when the police were preoccupied with other duties.

Susan Manheimer, who was serving as Interim Chief in Oakland, sent me a list of 10 separate incidents on Election Night. In one incident, officers interrupted an attempted burglary of a cannabis business, arrested more than a dozen individuals, and recovered nine guns. As the gang members fled on foot and in vehicles, three Oakland officers were struck and injured by vehicles. An Oakland officer fatally shot one person. At another incident less than an hour later, up to 30 shots reportedly were exchanged between a security guard at a cannabis shop and people trying to break in.

Susan explained to me that cannabis-related businesses are targeted more than other types of retailers, because they tend to have a lot of cash on hand. That’s because cannabis remains illegal under federal laws, so banks are afraid to accept cannabis businesses as depositors, for fear of running afoul of federal banking laws.

Legalization advocates think that the violence associated with illegal sales will subside once the legal retailers push the illegal sellers out of the market. But that remains to be seen.  Right now, it seems we have unintended consequences when state and local governments pass laws to decriminalize marijuana, but the federal government goes its own way. Local police agencies are literally getting caught in the crossfire in Oakland and other cities.

Other Issues: Police Hiring Standards, Varied Potency of Cannabis

Police departments and sheriffs’ offices also need to work through what legalization means for their workforce. People applying for jobs as officers are asked about previous drug use, and that becomes a complicated question when a drug that is still illegal federally has been legalized in many states.

For example, until this year, Springfield, MO required recruits to not have used marijuana in the previous three years. In January they reduced that disqualifying period to one year for recruits who come from states where marijuana is illegal, and eliminated the disqualifying period for recruits from states where marijuana has been legalized. These are tricky questions, especially at a time when police agencies are struggling with recruitment.

It’s a bit surprising to realize that it was only seven years ago that PERF released a report on changes in marijuana laws, and at that time, Colorado and Washington State had just become the first two states to legalize recreational marijuana. Back then, police chiefs predicted some of the challenges that have come to pass.

John Jackson, at that time chief in Greenwood, CO, told us, “I would recommend that other states try to slow this down, and allow time for things like putting a comprehensive data collection system in place, coordinating with the federal government, and updating the banking laws to make this a non-cash only transaction.”

R.C. White, then chief in Denver, said that the potency of marijuana in medical dispensaries in Colorado was 25 to 30 percent, compared to only 3 to 4 percent in most marijuana from Mexico. And the THC content in marijuana edibles such as cookies and candies was so high that it was resulting in deaths. Legalization also was creating challenges in the enforcement of DUI laws.

Seven years after we released our report, marijuana legalization has become far more common, but I’m worried that we don’t yet have a handle on the violence that continues to stem from illegal marijuana operations.  And we have yet to figure out how to find the middle ground on community concerns.

I don’t have all the answers here, and I’m not sure anyone does. Perhaps it’s time for PERF to hold another conference and get into these issues in depth. I hope that states, municipalities, and the U.S. Congress will take a second look at some of these issues, because police will be the ones dealing with the consequences.

I hope you have a great weekend.  Weekend Clips are below.

Best,

Chuck