Marijuana Legalization, Racial Disparity, and Interest Convergence

"A black person in Iowa is more than eight times as likely to be arrested for marijuana possession than a white person, even though both use marijuana at about the same rate, according to a report issued Tuesday by the American Civil Liberties Union" notes the Des Moines Register.  The full report is available here.  The report is a national-level call for the legalization of marijuana due to the racial disparity in those prosecuted and punished for marijuana-related crimes.

This report shows that the real, underlying problem is the detrimental impact of racial profiling and racial disparity in arrest and incarceration rates.  The report's stated conclusion, however, is that "the War on Marijuana, like the larger War on Drugs of which it is a part, is a failure."  This statement, which is the overriding theme of the report, overshadows the evidence of arrest rate disparities by race.  While discussion of race is admirably prominent, the plausible advocacy of the report seems focused on legalizing marijuana.  The conclusions of the article relating to racial profiling of African Americans are limited to several page-long, platitudinous recommendations that "Police Departments Should End Racial Profiling" and (even more naively) "Police Procedures Must Be Fair and Constitutional."  Police departments are not going to simply end racial profiling since race-based stops are usually not going to cause any significant constitutional problems for prosecutions (See Whren v. United States and United States v. Brignoni-Ponce).  Changes on the statutory or law enforcement guideline level that prohibit these practices might make a difference, but that is not what this report advocates.

First, two disclaimers.

First Disclaimer: I'm no expert in critical race theory.  I have done some research into implicit bias and racial performance in other projects, but I am looking to make a point along the lines of interest convergence, a theory I have peripherally explored but would not claim to fully know.  Because of this, I will do my best to make an argument involving interest convergence, but I warn that I may be mistaken in my application of the theory or in the terminology I use.

Second Disclaimer: From what I have learned in my reading on interest convergence, I have my own hesitations regarding the theory.  My biggest concern is that arguments from interest convergence can form intuitive, compelling stories, but it is unclear how much of an actual effect interest convergence has on the development of policies.  I am certain that more research has been done on this point by supporters and detractors of the theory, and I am not looking to explore the debate here, but I just want to make my overall position clear.  The argument that follows sets aside any concerns I have with the merits of interest convergence theory and proceeds from the assumption that the theory is valid.

My argument is that the ACLU's report seems to be a paradigmatic example of interest convergence.  While this report's advocacy may lead to some net gain, underlying problems will remain unsolved and efforts that further the legalization of marijuana may result in an inefficient use of political capital.  

The report and the reforms it advocates harness the power of interest convergence in seeking solutions to problems faced by African Americans.  Ending the war on marijuana would reduce arrests for people of all races.  As the report admits, both Whites and African Americans use marijuana at similar rates, and while Whites are not arrested with the same frequency, they are still arrested and they still face the risk of arrest, even if this risk is lower than the risk faced by African Americans.  This risk would be eliminated for all whites who use marijuana if marijuana were legalized.  Admittedly, this argument applies to those Whites who are interested in smoking marijuana and is therefore not universally applicable (though it certainly would be widely applicable to many in the Los Angeles community).   Furthermore, the report emphasizes the costly nature of marijuana prosecutions and argues that overall legalization will reduce this financial burden on the citizenry.  This argument is structured to appeal both to Whites and African Americans, since the entire citizenry shares in the cost of paying for these prosecutions.

Viewing the report in this manner reveals that marijuana legalization is an indirect way to address racial disparities in arrest and incarceration rates.  There may be a benefit to this policy: the report details the high number of arrests of African Americans due to marijuana-related crimes, and arrests for these crimes would not occur if  these crimes were eliminated.  On the other hand, the legalization of marijuana would do nothing to address racial profiling by police, which is the real reason for the disparity in arrests and incarceration that prompted this report.  The political capital that would need to be spent on advancing the controversial policy of marijuana legalization could be better spent elsewhere, namely on statutes and ordinances that go beyond the limited protections provided by the Fourth Amendment and prohibit the use of race in forming probable cause or reasonable suspicion.  These statutes would have the benefits of directly addressing the problem and would apply to all prosecutions, not just prosecutions for marijuana-related crimes.  This alternate approach may also be perceived as less controversial than marijuana legalization and would be a good initial step towards trying to solve the problem.  Statutes barring race-based searches and seizures would likely run into problems if the marijuana legislation suggested by the ACLU were passed: detractors of the search and seizure statutes could argue that the problem has been solved by the marijuana legislation, or that advocates of new policies would at least need to wait and see the effects of the marijuana legislation before they could make convincing empirical arguments.

As a final thought, there may yet be some merit to advancing the argument about marijuana legalization as the alternative to statutes that prohibit racial profiling and race-based searches and seizures.  Given the apparent option between nothing, search and seizure statutes, or marijuana legalization, the search and seizure statutes might seem like an acceptable middle ground.  Voters may compromise if there is this wider spectrum of policy options.  In the future, organizations like the ACLU that advance marijuana legalization policies should do a better job of developing the middle ground of search and seizure statutes since people who are not willing to go all the way and legalize marijuana may still seize onto the alternative of statutory restrictions on searches and seizures.