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Growing evidence

The bill makes the criminal law regarding marijuana more consistent with the widely held view that simple marijuana possession poses almost no real threat to public safety

Mimi Brill is supervising attorney for the Windham County Public Defender.


The Vermont House of Representatives is considering legislation that would allow the state to take a critical next step in correcting the historic wrong of marijuana prohibition and mitigating the damage that has been done — especially in Vermont’s most marginalized communities — under that policy.

The bill, H. 170, removes all penalties for possession of an ounce or less of marijuana and two mature (and four immature) plants; the legislation reduces penalties for possession above the legal limits.

As a result, it makes the criminal law regarding marijuana more consistent with the widely held view that simple marijuana possession poses almost no real threat to public safety.

Removing all penalties for what had been decriminalized, creating civil penalties for what had been the lowest level misdemeanors, and reversing the overly severe penalties for larger amounts: these are the right things to do.

Allowing limited home cultivation also makes sense. It provides individuals with a safe, legal way to acquire what will become legal for them to possess.

These reforms are desperately needed. Right now, Vermonters are continuing to face significant criminal legal consequences related to marijuana. Criminal defendants are still being incarcerated for use and possession of decriminalized amounts of marijuana in the context of probation and parole violations.

Vermonters also still face jail time for growing a few plants. Further, suspected possession of even the smallest amounts of marijuana is often the basis for searches that would otherwise require a warrant.

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Growing evidence documents significant and alarming racial disparities in police stops in Vermont. This research gives us ample reason to suspect that the ongoing illegal status of possessing even the smallest amounts of marijuana continues to disproportionately impact people of color.

As troubling as the current situation is, it is not surprising. Marijuana prohibition has been entrenched in insidious racism since its inception.

According to The New York Times, “[t]he federal law that makes marijuana a crime has its origins in an atmosphere of hysteria during the 1930s that was firmly rooted in prejudice against Mexican immigrants and African Americans who were associated with marijuana use at the time.”

A 2013 report by the American Civil Liberties Union found that, in 2010, African Americans in this country were, on average, 3.7 times more likely to be arrested on marijuana charges than whites, despite the fact that blacks and whites reported using marijuana at nearly identical rates.

According to this same study, in Vermont, this disparity was even worse than the national average, with arrest rates of African Americans an average 4.4 times higher than arrests of whites, and rising to a staggering 16 times higher in the worst Vermont county.

Current law also impacts poor Vermonters the most. According to the Rand Corporation, “for someone who works close to minimum wage in Vermont, paying $200 for possessing less than 1 ounce could consume the take-home pay for the better part of a full week of work.”

There have been more than 5,000 marijuana citations since the decriminalization law went into effect in 2013. These numbers correspond with reports that some police departments are still considering marijuana enforcement a priority.

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Persisting with these unfair and failed prohibition policies will not reduce use; it will simply make using marijuana more dangerous.

Prohibition forces consumers to go underground where they cannot get consistent information about the potency and purity of the marijuana they are consuming. It puts young people — who may initially be intrigued by that danger — at risk. It contributes to crippling our already broken criminal legal system and, in the context of problematic use, traps us into faulty legal system responses to public-health problems.

H. 170 is important criminal justice reform legislation. It would make our marijuana policy fairer and more consistent, and it would increase respect for the integrity of our public policies.

I encourage the legislature to take this important step forward.

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Originally published in The Commons issue #401 (Wednesday, March 29, 2017).

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