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48 Hum. Rts. 14 (2022-2023)
Social Equity in Marijuana Regulation

handle is hein.journals/huri48 and id is 72 raw text is: 

Social Equity in Marijuana Regulation

                                        By Sam   Kamin

    W hen marijuana was
              first legalized and
              regulated at the state
              level, what we now
think of as social equity concerns-
the idea of using marijuana legal-
ization to remedy the past harms of
marijuana prohibition-were not at
the forefront. Rather, it was very much
unclear whether the states would be
allowed to tax and regulate marijuana
at all. At the first meeting of Governor
John Hickenlooper's Task Force to im-
plement Amendment   64 in Colorado
in 2012, 1 was asked, only partly in jest,
if we on the Task Force were going to
go to prison for helping to write the
regulations for the nation's first taxed
and regulated adult-use marijuana
market. I couldn't give a definitive no.
Then, as now, marijuana was prohibit-
ed by the federal government, and the
Obama  administration had intimated
that it would not countenance states
moving from the regulation of mari-
juana for needy medical patients to
the formation of for-profit adult-use
marijuana industries. There was a real
risk at that time that the federal gov-
ernment would attempt to invoke the
supremacy  clause to shut down the
nascent adult-use marijuana industry
or would simply begin prosecuting ev-
eryone who was in violation of federal
law as well as those-lawyers, insurers,
bankers, and regulators-who were
helping them do so.
   In the last 10 years, however, that
has changed. It has become clear, in
republican administrations as well
as democratic ones, that the federal
government  has no interest either in
enforcing federal law against those
in compliance with robust state reg-
ulations or in seeking to shut down
state regulatory efforts in court. This
federal acquiescence has led to an
increasing number of states legalizing
marijuana, and momentum   seems
to be gathering for a repeal of the
Controlled Substances Act and the
legalization of marijuana at the feder-
al level as well. As a result, marijuana

has become  big business
in the United States, and
many  of those licensed
to produce and sell it
have been very success-
ful. With an increasing
number  of nations around
the world-including our neighbors to
both the north and the south-legalizing
marijuana at the national level, the
prospect of an international, fully legal
marijuana market in the near future has
become  a realistic possibility, bringing
with it the possibility of even more
explosive growth.
   Thus, marijuana licensing is now
occurring in an environment where
those authorized to participate in the
regulated market are gaining access
to a scarce, valuable resource. When
a state prohibits some market partic-
ipants-those with a record of drug
convictions, say-or favors others-
those who live in particular neighbor-
hoods or share certain demographic
characteristics-it helps determine in
a very concrete way who will succeed
and who  will fail in the burgeoning
market. And given the disproportion-
ate impact of the War on Drugs-a
war that continues to be fought even
as marijuana becomes big business-
picking those winners and losers in a
fair and equitable manner becomes
all the more important.
   Illinois was the first state to rec-
ognize the necessity of encouraging
minority and disadvantaged partici-
pation in their nascent industry; now
such provisions are routinely part of
state initiatives to reform marijuana
laws. Perhaps more importantly, social
equity considerations are certain to
be a crucial part of any change in
federal law. For example, the Mar-
ijuana Opportunity Reinvestment
and Expungement   Act (commonly
known as the MORE  Act), proposed
by Congressman  Jerry Nadler (D-NY),
would not only legalize marijuana
at the federal level, but it would also
create a mechanism for expunging
marijuana convictions and an office

            for business loans to
            assist small business
            concerns owned  and
            controlled by social-
            ly and economically
            disadvantaged  indi-
            viduals that operate in
eligible States or localities. Other bills
under consideration similarly take on
issues of social equity and reparations
for the harms of the drug war. And
social equity concerns have inverted
the traditional politics of marijuana
reform: Senator Cory Booker (D-NJ),
one of the most progressive members
of the Senate and a long-time advo-
cate for marijuana law reform, recently
blocked the passage of the Secure
and Fair Enforcement (SAFE) Banking
Act, long thought to be the lowest
hanging fruit of federal marijuana law
reform. Booker announced  that he
would lay myself down to block the
passage of a bill to make marijuana
banking easier for current players in
the marijuana industry before secur-
ing passage of a comprehensive fed-
eral reform law. Booker argued that
the passage of the SAFE Banking
Act would only accomplish further
enriching of people in a multi-billion
industry without addressing the
harms of the drug war.
   By criminalizing marijuana for more
than 50 years under the Controlled
Substances Act, the federal govern-
ment has essentially absented itself
from marijuana regulation. That work
has been done, instead, by the states.
As the federal government now moves,
slowly, toward legalization at the feder-
al level, it is already clear that social eq-
uity will play an important part in any
decriminalization changes to come.

Sam Kamin is the Chauncey G. Wilson
Memorial Research Chair at the Univer-
sity of Denver, Sturm College of Law.
He served on the Task Force to Imple-
ment Amendment  64 in Colorado and is
currently the chair of the ABA Criminal
Justice Standards Committee.

14    humanrights





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