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The intersection of drug law and racial justice

Legalizing cannabis is a step in the right direction for ending racial disparities in the criminal justice system, some professors and advocates argue


“For decades, experts in the field of drug law have pointed to extreme racial disparities in marijuana-related arrests and criminal convictions as clear evidence of racial bias in the legal system.” Illustration published on Thursday, Nov. 19, 2020.

On Nov. 3, Arizona voted to pass Prop 207, legalizing the recreational use of marijuana. Arizona will be the 13th state to legalize the drug, among a total of 44 states and Washington D.C. where it is either decriminalized, legal for medical use or fully legal. 

This referendum marks a drastic change in the state’s marijuana policy, which has historically been among the most punitive and harsh in the nation. The new proposition’s language is controversial, but it was passed by a decisive 60% majority.

Arizona is joined by a wave of states to legalize recreational marijuana in the 2020 election, including New Jersey, South Dakota and Montana. 

While on the surface it may seem like recreational marijuana is a win exclusively for the stoner next door, the rationale for these laws is often much more complicated. To many, marijuana legalization is a key racial justice issue in a moment of sweeping popularity for criminal justice reform.

Racism in the history of drug law

For decades, experts in the field of drug law have pointed to extreme racial disparities in marijuana-related arrests and criminal convictions as clear evidence of racial bias in the legal system. Doris Provine, professor emeritus of justice and social inquiry in ASU's School of Social Transformation, is one of those experts.

In 2007, Provine authored a book called "Unequal Under Law: Race and the War on Drugs" which argues that systemic racism has played a subtle yet significant role in the history of policing drug users and sellers.

"I think the courts are still kind of stuck in that paradigm that racism is about bad apples," Provine said. "When we talk about systemic racism in more academic terms, I think we’re talking about how systems work to amplify results in a way that discriminates against one group or another. I think it really begins with law enforcement."

Though it's harder to label officers and prosecutors as overtly racist in the traditional sense of intentional acts of discrimination, Provine said the legal system often leaves lots of room for discretion in their actions, allowing internalized biases to influence who is policed for drug use and how harshly they're sentenced.

A 2020 report on racial disparities in Maricopa County by the American Civil Liberties Union of Arizona reveals that, on average, Black people consistently receive longer and harsher sentences when prosecuted for personal possession of drug paraphernalia.

According to Ojmarrh Mitchell, an associate professor in ASU's School of Criminology and Criminal Justice, these disparities can be connected to a history of institutionally endorsed racist associations and attitudes toward drug use in America.

"If you go back to the 1920s … the federal government was a chief disseminator of misinformation, disinformation about the harmful effects of marijuana, and much of it was racialized," Mitchell said. "This stuff was plain and simple, naked racism. They didn’t try to hide it."

That racist messaging, in turn, justified a cultural hysteria toward drug use in the second half of the 20th century that resulted in increased policing and harsher sentencing of poor neighborhoods of color that remains prevalent in policing practices today, even though white people use drugs such as marijuana at proportionate rates to Black people.

"There are differences in the way neighborhoods are policed by socioeconomic status and race," Mitchell said. "You don’t see the same type of aggressive law enforcement in white affluent areas that you see in poor Black areas. That leads to more drug offending being revealed and that’s a major source of racial disparities generally and in particular to drug arrests."

A shift in public opinion

Today, though racist attitudes related to drug use and racial disparities in criminal punishment remain, public opinion has shifted significantly on the issue of criminalizing drug use, particularly with marijuana. According to a 2019 study from Pew Research Center, two-thirds of Americans support marijuana legalization. Just 20 years before, in 1999, the opposite was true, with 63% of Americans reporting to support marijuana remaining a fully illegal substance.

Provine asserted that the push for medical marijuana is what paved the way for the wave of legalization we can observe today.

"The argument that marijuana had real medical value … as that industry just went really fast and got big," she said. "And then of course people realized, well, the world didn’t end with medical marijuana. Then recreational marijuana followed suit. It could never have begun with recreational marijuana."

Benjamin Fong, an honors faculty fellow and professor at ASU and author of a trade publication tentatively titled "Drugs in the History of Capitalism," said he thinks the shift in the legislature's view on marijuana may also be related to business incentives. Currently, the American cannabis industry is projected to grow at a staggering 20% in the next five years, reaching a $30 billion value by 2025.

"As long as there’s a culture of tough-on-crime, drug-related hysteria, then you can justify a lot of things that are irrational," he said. "But if enough people can make money off of something then you get a counterbalance to that."

It seems that shift in public opinion has had very little to do with acknowledgment of racism in the policing and prosecution of drug crimes, perhaps explaining the persistent presence of disproportionate arrests of Black people for cannabis-related crimes today.

The problems legalization could solve

Fong said he thinks the decriminalization of drugs like marijuana will help solve issues of addiction and abuse.

"On the user end, the decriminalization of drugs is something that makes a lot of sense policy-wise," Fong said. "The only way of really fighting drug abuse is to provide treatment, not to just fill up prisons with drug users."

Valena Beety, a professor of law at ASU's Sandra Day O’Connor College of Law and the deputy director of the Academy for Justice, echoed a similar sentiment. Before entering academia, Beety worked as a federal prosecutor and represented many people who, she said, were over-sentenced for drug-related crimes.

"Literally, putting people in prison who have an addiction does nothing," Beety said. "The definition of addiction is that you have this behavior that you can’t control no matter what. So even if the consequence is a lifetime in prison, you’re still going to do what you can to use."

Mitchell, however, cautions those who think that legalizing marijuana will help end racial disparities in the criminal justice system. He argues that, even when legalized, there will still be an illicit market for marijuana outside of legal dispensaries, which will still be policed along racial lines.

"When you legalize a drug like marijuana, you wipe out possession arrests, and the only thing left are those racial disparities in distribution, where the disparities are very high," he said. "The good news is the overall number of people who are arrested, of any race, will go down substantially.

"If anyone’s thinking this is going to reduce racial disparities in drug arrests, drug convictions, they’re mistaken, but it will reduce the number of people who are arrested."

Beety placed the responsibility of reducing racist or unproductive convictions for drug crimes squarely on the shoulders of prosecutors. 

"Prosecutors have at their discretion which laws to prosecute," she said. "Our county prosecutor for Maricopa County, for example, could choose not to bring drug charges, and instead to invest her time in focusing on domestic violence, or sexual assault. That’s within her purview in directing that office. Drug usage would still be illegal, but it’s up to her to choose what priorities her office would pursue."

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