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Cannabis Post 2: Common Terms
May 8, 2021
To decriminalize and to legalize mean exactly what they sound like: to make not criminal and to make legal, respectively. Confusion comes from the common-sense idea that all illegal acts are criminal, which would make deeming an action not criminal and deeming an action legal the same thing. Contrary to common sense though, not everything which is illegal is a criminal. Crimes are offenses specified in a state’s criminal or penal code and can be punishable by jail time. Actions which are not legal but are also not crimes are civil offenses. Civil offenses are typically punishable only by fines.
The reason for this funky terminology specification is a little convoluted. Why make two categories of “not allowed?” There is no one clear cut answer, but a little context can help shed light on why the distinction matters for cannabis law. Generally a crime is an offense against the state or society as whole. Only the government can initiate criminal prosecution. Civil law generally covers disputes between private parties, like issues between a landlord and a tenant. One private party can bring a civil lawsuit against another. Several federal agencies can impose civil penalties, the most common example of which is the EPA, but the most commonly known civil penalty at the state level is a fine for speeding.
The beginnings of the government imposing civil penalties are somewhat blurry, and there have not been any major court rulings about government operating in what was originally a space for private parties. Vanderbilt law school professor Jonothan Charney held that the government started imposing civil penalties as a way to circumvent the requirements of criminal due process.
While Charney’s point is valid, the advantages to having civil penalties outweigh the disadvantages in the case of cannabis law. A category of actions which are illegal but not criminal allows for a more continuous scale of punishments, which lets the government discourage behavior it does not condone, without giving people criminal records for offenses which do not harm all of society. This “scale of punishments” brings us back to the context of what decriminalizing and legalizing cannabis actually means.
Decriminalizing cannabis means maintaining laws against possession of any amount of cannabis, but making possession of small amounts of marijuana a civil offense punishable only by a fine. Possession of larger amounts of cannabis remains a crime. Legalizing cannabis means making it explicitly allowed to possess small amounts of cannabis. Having small amounts of cannabis is like having a bottle of advil. Possession of larger amounts of cannabis will start at civil penalties with low fines and escalate (with increasing possession amount) to civil penalties with higher fines, and finally to crimes with varying degrees of jail time. To oversimplify for the sake of comparison:
Cannabis is Criminal:
Any amount: crime with fines and/or jail time scaling with amount
Cannabis is Decriminalized:
Small amounts: civil offense with fines scaling with amount
Medium and large amounts: crime with fines and or jail time scaling with amount
Cannabis is Legal:
Small amounts: allowed
Medium amounts: civil offense with fines scaling with amount
Large amounts: crime with fines and or jail time scaling with amount
“Decriminalizing cannabis” does not mean decriminalizing all cannabis, and “legalizing cannabis” does not mean legalizing all cannabis. It’s easiest to think about legalizing cannabis as making it like speeding: driving below a certain speed is allowed, driving a bit above it gets you a ticket, driving too far above it can land you in jail. It is important to note that this is what cannabis decriminalization and legalization are currently; it might not be the most logical way to go about legislating cannabis. Driving speeds are limited because going too fast is a safety hazard. Many would argue that possessing large amounts of cannabis is not a safety hazard. While it could indicate intent to distribute, possessing large amounts of alcohol could also indicate intent to distribute (which is illegal without a license), and there are no limits on how much alcohol an adult can possess.
The last bits of terminology that can be helpful in understanding cannabis law are the different classifications of offenses: “misdemeanor,” “infraction,” and “felony.” Which offenses fall into which categories and what the punishments are for each category is specific to each state and the federal government. Typically, infractions are the lowest level offense, misdemeanors the middle, and felonies the highest. In most states, an infraction is a civil offense, not a crime, and misdemeanors and felonies are crimes.
Sources (click to expand)
Education as the Foundation of Good Citizenship
January 7, 2021
The U.S. Supreme Court has itself stated that “Education is the very foundation of Good citizenship.” Education can serve as an important gateway to financial stability and upward social mobility. In many ways, it is the key to more effective corrections, policing, and personal redemption across the United States. Yet, on a yearly basis, more than 2.3 million current and former inmates are denied this right. This is the never-ending, uphill battle of the American felon.
In contrast to the 82% of Americans who hold a high school diploma, only 59% of prisoners hold an equivalent degree. Likewise, only 24% of individuals in federal prisons have received a college education. All the while, the educational resources provided to inmates by the correctional system are scarce. While 52% of U.S. state and federal prisons offer vocational training programs, only 6% of inmates nationwide have any access to any college-level courses. This means nearly half of the U.S. prison population does not have access to programming that could provide the tools and skills needed to seek out employment after sentencing and a vast majority of inmates won’t have access to higher education at all.
The uphill battle to obtain an education doesn’t just end behind the jailhouse bars. Nearly 70% of collegiate institutions require disclosure of prior convictions by all college applicants while 3 out of 4 of those same institutions view minor crimes such as substance abuse as a ‘serious factor for non-admission.’ Moreover, in the rare case that students are able to gain acceptance to an institution, federal aid is highly limited as a result of Title 7 restrictions in the Civil Rights Act.*
Even if individuals reform their behavior after serving their sentences, the path to success is a narrow one and the limitations imposed on felons are severe. The direct connection between lower educational attainment and recidivism is indisputable. By denying prisoners the education necessary to achieve successful employment, our system risks leaving released citizens without the financial stability and support systems necessary to prevent future crime. In many situations, former felons may find themselves with no other option than to seek out illicit income sources to meet their basic needs. In fact, a staggering 89% of individuals who return to prison are unemployed at the time of recidivation. Though U.S. correctional facilities are established to reform and ‘correct’ the behavior of formerly incarcerated individuals, the U.S. justice system is almost entirely attached to a punitive model.
Ensuring formerly incarcerated citizens have a fair and supported path to employment is critical in allowing former convicts to become community contributors. A recent report by the Rand Corporation demonstrates that inmates who participate in educational programming have a 43% lower chance of recidivating. Additionally, prisoners who participate in vocational training were 38% more likely to receive employment post-release. The financial and communal benefits of these programs are extraordinary. Missouri alone saves approximately $25,000 annually for each prisoner who does not recidivate. Moreover, education enables former convicts to gain the necessary confidence to move beyond their past towards a more productive future. The ripple effect of post-penal success could reach up to 2.7 million children who suffer economic troubles and increased rates of delinquency as a result of parents in prison. It is up to us to ensure all Americans have access to education in the interest of personal and communal reform. We invite you to investigate whether your state provides educational programming for in-state prisons on your state’s page.
*More to come on Title 7 restrictions on felons in our upcoming article on prison reform.
Discrimination Against Americans with a Criminal Record:
Title VII in Plain English!
January 28, 2021
A recent report by the National Institute of Justice indicates, “a vast majority of employers would probably or definitely not be willing to hire an applicant with a criminal record.” With 93% of employers conducting background checks on a yearly basis, any and all law enforcement records could become a serious barrier to potential employment. This can include: complaints to local police departments, investigations, and arrest records. Concerningly, employers may have access to these records regardless of whether any charges were pressed or resulting convictions were given. The resulting consequences are far reaching, with 1 in 3 Americans having been arrested by the age of 23. This means up to 70 million Americans may be prevented from effectively contributing to our economy. That is roughly equal to the number of Americans with a college diploma. The question then arises, what protections are in place to ensure that such a large segment of the U.S. population is given a fair chance at employment? As it currently stands, the answer to that question is a resounding, “Well, it depends.”
While laws regarding hiring practices may vary on a state-to-state basis, the primary protections for citizens with a criminal record lie within the legal confines of Title VII. Title VII is a provision of the 1964 Civil Rights Act which prohibits discrimination on the basis of race, color, religion, gender, pregnancy, or national origin. There are two primary ways in which Title VII may serve to protect individuals who were refused employment as a result of a criminal record.
Protection 1: Disparate Treatment: Disparate treatment is any situation in which an employer might discriminate between two similarly qualified candidates with similar criminal records based on nationality or race. Discrimination may be demonstrated through inconsistencies in the hiring process, such as disproportionately screening candidates of color for criminal records while demonstrating no intent to screen Caucasian candidates. Disparate treatment can ultimately be described as a demonstration of overt and direct intent to discriminate against a particular group over another.
Protection 2: Disparate Impact: More common than disparate treatment, disparate impact is a situation in which an employer does not demonstrate any discriminatory intent but has an employment policy that negatively and disproportionately affects a certain population. This provision prevents businesses from having any blanket employment policies, such as rejecting any applicant on the basis of a criminal record alone. An applicant can therefore challenge an employment rejection if they can demonstrate in court that their criminal history is unlikely to impact how successfully they may perform in a certain position. Disparate impact is integral to protecting citizens in two primary ways:
a. Employers and courts must consider the gravity of a certain behavior, the amount of time passed, the reliability of the allegations against the candidate, as well as how and if a given charge is relevant to the nature of the position being sought.
b. It prevents employers from unintentionally discriminating against groups that may be disproportionately arrested or convicted.
While these two protections under Title VII have served to protect hundreds of thousands of citizens from chronic unemployment, the reach of Title VII is not all-encompassing in its ability to ensure all Americans are given a fair shot at employment. As the original intent of Title VII was to protect job candidates from discrimination based on race, color, religion, gender, pregnancy, or national origin, the capacity of the provision to protect individuals with a criminal record has had to be established almost entirely on legal precedent alone. On a federal level, Title VII exists as the primary protection for individuals with a criminal record seeking employment, regardless of whether it was explicitly designed to do so. As a result, a large percentage of qualified candidates are still overlooked by employers regardless of whether they were proven innocent or have shown good behavior since their conviction. Title VII is an important safeguard for a significant portion of the U.S. population, but it is not enough. In the coming weeks, we will explore vital new solutions such as ‘fair chance’ and ‘ban the box’ initiatives to ensure that no individual is left behind in their mission to find employment. In the meantime, we invite you to investigate how you can get involved with community reform and reinvestment on your state’s page.
Ban the Box: A Campaign for Fair Chances
February 11, 2021
Throughout the United States, 76 million Americans are denied jobs, public housing, student loans, the right to vote, and even food stamps due to conviction records. In the past few weeks, we have discussed how discrimination on the basis of criminal history bears consequences that are difficult and far reaching. (See: What is Recidivism? and Education as the Foundation of Good Citizenship) Though Title VII of the Civil Rights Act grants certain protections for individuals with a criminal record, the capacity of the provision to protect such individuals seeking employment has been established on legal precedent alone. (See: Discrimination Against Americans with a Criminal Record: Title VII in Plain English!) Without more substantial protections, a large percentage of qualified candidates are denied the means to effectively provide for themselves and their families. It is time for us to call upon American employers to Ban the Box.
Borne out of the organization All of Us Or None, Ban the Box is a national campaign to ensure employers consider a candidate’s qualifications for employment without the stigma of a criminal record. At its most basic level, the campaign calls for the removal of the question, “Have you been convicted by a court?” from employment, housing, public benefit, insurance, and loan applications. The scope of Ban the Box laws can vary greatly between states and localities. While many jurisdictions may simply obligate employers to remove conviction history questions from applications, others may go as far as requiring employers to consider time passed, mitigating circumstances, and evidence of rehabilitation by candidates in the hiring process. Ban the Box laws can also vary in their ability to protect job candidates to both public and private employers. As it currently stands, a majority of protections only serve publicly funded positions such as those within the federal government or any contracted agencies while a vast number of private employers remain unregulated.
Ban the Box had its modest beginnings in the summer of 1998, with Hawaii passing the first law restricting employers from considering a job candidate’s criminal record. 23 years later, 36 states and over 150 cities and counties have adopted similar ‘fair chance’ policies primarily within the public sector. In 2015, President Obama endorsed the campaign and directed all federal agencies to implement delayed criminal record inquiries. As a result of the National Defense Authorization Act, a vast majority of public employers will be lawfully prohibited from requesting any information on arrest and conviction records until a conditional job offer is granted to a given candidate - effective December 2021.
Though we have seen great strides in the public sector to ensure individuals with records have a fair shake at employment, the battle to extend fair chance policies to private employers is arduous and ongoing. As of October 2020, only 14 states and 20 cities have obligated private employers to remove conviction history questions from job applications. Yet, extending employment opportunities to the formerly incarcerated could have sweeping benefits. Economists estimate that gross domestic product could see an increase between $78 and $87 billion annually as a result of improved employment rates among former felons. A study in 2011 demonstrated that providing employment to as few as 100 formerly incarcerated persons could result in a $2.7 million increase in annual tax revenue, all while reducing costs by an est. $2 million annually by keeping individuals out of the criminal justice system.
By banning the box and giving the formerly incarcerated a fair chance at employment, we help to build our economy, keep individuals out of jail, and keep food on the table for nearly half of our nation’s children. We invite you to investigate how you can support the Ban the Box campaign at: https://bantheboxcampaign.org.
How does the federal government influence state police reform efforts?
January 5, 2021
In September 2020, President Donald Trump (R) threatened to cut federal funding to states and cities that have “permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities (anarchist jurisdictions).” Specifically, President Trump asked the director of the Office of Management and Budget to investigate all of the federal funds given to New York City, Portland, Seattle, and Washington D.C.
This extreme punishment is not surprising. In July, Trump suggested that schools that didn’t reopen in the Fall would lose federal funding. In August, the President threatened to cut FEMA funding to California for its allegedly poor response to the breakout of wildfires. Trump’s politically charged suggestions beg the question—how do state and federal government budgets interact?
State governments run on balanced budgets: all of the funds spent over the course of the year must be replaced by incoming revenue. In 2019, an average of one third of all state funding came from federal grant funding. Federal funds typically support large public expenditures; in 2019, they accounted for more than half of state funding for healthcare and public assistance programs.
The federal government gives these funds to state governments through categorical grants, block grants, and/or general revenue sharing. These grants are used for narrowly defined activities, specific programs and a range of activities, and broad programs, respectively. States can spend that money with varying levels of discretion, depending on the type of grant. Notably, federal agencies design the grants, and can set specific stipulations that states must follow in order to receive the funding.
Federal agencies can withhold those funds if the state is not using them as established in the grant agreement, or if the funds are used to support programs that do not meet federal standards of non-discrimination and safety. Recent examples of this practice include:
2016: Agencies in the Obama White House considered withholding funds from North Carolina after it passed legislation discriminating against transgender individuals,
2017: The Federal Transit Administration (FTA) decided to withhold 5% of D.C., Maryland, and Virginia transit funds until the jurisdictions passed identical legislation to meet FTA safety requirements on Washington Area Metropolitan Area Transit Authority rail lines.
What does this mean for police reform?
Federal funds can be used as a positive or negative incentive for states to take action. However, historically, the federal government has relied on the justice system to intervene in municipal law enforcement offices and address local problems of abuse rather than offer financial (dis)incentives for state-level change. The Department of Justice manages these investigations, and sues cities that do not comply with any recommendations.
The Violent Crime Control and Law Enforcement Act of 1994, passed after the race riots following the death of Rodney King, gave the Justice Department new powers to investigate local law enforcement agencies for the “pattern or practice” of unconstitutional policing and force them to implement reforms. DOJ officials typically open these cases in response to widespread outcry or continued reports of injustice. Attorney General Eric Holder initiated and resolved such a case in Ferguson following the death of Michael Brown.
Between 1994-2017, the DOJ opened 69 investigations and reached 40 formal agreements with local law enforcement across America. Under President Trump, the Justice Department has not opened or resolved a single “pattern or practice” investigation. Click here to find out if the DOJ has investigated a city near you.
This brings us back to the states.
Though DOJ investigations are effective ways to address the problems of municipal police departments, the inquiries can last multiple years, cost millions of dollars, and primarily impact one community rather than the whole state. Similarly, without federal laws defining police action and culpability, agencies have little legal authority to withhold funds.
President Biden plans to utilize federal funds to incentivize positive action rather than punish states that don’t act. In his criminal justice reform agenda, Biden references incentivizing state action through federal grants in 13/34 of his proposals. In other words, the success of almost 40% of the new administration’s criminal justice goals relies on state interest in pursuing these reforms.
State-level law enforcement accountability is established through state-level action.
Prison Reform Introductory Article: What is Recidivism?
December 17, 2020
In a given year, 10.7 million Americans are arrested. 10.6 million of those individuals will be held in jail. 2.3 million will make their way to prison.
American taxpayers spend $80 billion dollars on correctional facilities annually. Yet, of the 600,000 men and women that are released from state and federal prisons each year, 480,000 of those individuals will find themselves back behind bars. This begs the question, if Americans are spending so much on correctional facilities, why aren’t these individuals leaving prisons with ‘corrected’ behavior?
The answer to this question begins with ‘recidivism.’ Simply put, recidivism is a given person’s tendency to relapse into previous criminal behaviors. While the criminal justice system in the United States seeks to use measures of punishment as a deterrent to future misconduct, data from the Bureau of Justice indicates the exact opposite is taking place. What makes this particularly alarming is that the United States displays the highest rates of recidivism in the world, with 83% of individuals being re-arrested within 9 years. Even more disturbing is the fact that, while the total U.S. population makes up 4.45% of the world’s population, the U.S. prison population makes up 25% of the world’s prison population. While this may not be a uniquely American issue, Americans pay the highest price, footing a $552 billion dollar a year bill in annual damages due to repeated crime alone.
Strict parole rules, mandatory minimum sentences, a lack of access to education, felony classifications, insufficient mental health resources, limited hiring practices, and barriers to criminal record expungement are only a few of the contributing factors to high recidivism rates in the United States. Yet, the core issue across these topics remains the same. Harsher punishments and limited post-release opportunities mean higher rates of future offenses.
Fewer crimes means fewer arrests. Fewer arrests means fewer people imprisoned. Fewer people imprisoned means fewer future crimes. Learning how recidivism is a problem in our country can be a crucial first step to understanding the need for change in our prison system. If we make these important changes, we can reduce the amount of potentially dangerous interactions with police and reinvest in our communities. Through taking a closer look at prison reform in the coming weeks, we hope you will join us in investigating how rehabilitation and penal reform can be utilized as a means to curb repeat offenses and combat recidivism in our country.
Why Voting Matters
In this deeply cynical age, we’ve been told again and again our vote doesn’t matter. We’re told to treat all politicians as callous, corrupt, and uncaring. “They’re all the same,” goes the common refrain, “so why should I bother?” In years past, we’ve become convinced our ballot will do little to change the dysfunction and division seen in Washington and in state capitals from coast to coast. No matter the victorious party or the number of seats they hold, it is claimed, the status quo will remain. As a result, we’ve tuned out our politics and resigned ourselves to accepting the will of others. It’s been so inspiring seeing the overwhelming turnout across the country in the leadup to November 3rd. But don’t let this increased engagement fade after 2020. We’re living through exceptional circumstances to be sure, but we can’t allow our involvement to decline once again after this moment passes. Citizenship isn’t a one-off activity. It’s a lifelong undertaking requiring of each and every one of us time and effort.
Frustration with representation is inevitable when large portions of the populace decide not to vote or are disenfranchised by those in power. The great American experiment is only as strong as the faith and trust in our political system to represent the needs and interests of all Americans. Change happens when we make our representatives earn our trust. If you’re feeling frustrated with your elected officials, hold them accountable. This isn’t easy. It’ll take work. Educate yourself, trust your own judgement, and cast your ballot. Democracy doesn’t work when we sit on the sidelines and shirk our responsibility to be engaged.
Put bluntly, our all-too-frequent collective inaction is in turn our collective failure. When we treat our system as one capable of autopilot, we abdicate the essential responsibility of citizenship. Voting does not, nor can it, solve all of the problems plaguing America. No matter who wins on November 3rd, many of the challenges we faced when we went to sleep will still be with us when we wake up. But voting can make things better. Not as quickly as we might like, nor on as grand a scale as is necessary, but bit by bit, this imperfect union moves closer to realizing our foundational promise. To all of us here at Meet the Momentum, that’s a future worth fighting for.
Statement on the 2020 Presidential Election
Since we launched Meet the Momentum, we’ve recognized the importance of elections to ensure desperately-needed police reform is enacted in cities and states across America. This year, the stakes couldn’t have been higher. Donald Trump has emboldened white supremacists, refused to acknowledge systemic racism in the United States, and resisted efforts to reform a broken policing system. But this week, with millions of ballots cast, Americans rejected Donald Trump and delivered the White House to Joe Biden, our president-elect. Biden is not a perfect man. He’s made mistakes in the past and certainly will in the future, but his fundamental decency is profound. Throughout his campaign, he’s sought to draw attention to the deeply-rooted flaws within American law enforcement while simultaneously recognizing the dedicated public servants in the profession.
Sitting at home, I’m sure a lot of you are at least somewhat disappointed in how this election turned out. Despite expectations to the contrary, we didn’t see a sweeping repudiation of Trumpism and the agenda it has pursued. We didn’t see Americans from all walks of life reject the politics of fear. Instead, we were reminded once again just how divided we are. Even as Joe Biden and Kamala Harris won the presidential race narrowly, the Senate outcome remains unclear.
Amidst considerable uncertainty, one thing is clear: the challenges America faced when we went to sleep on November 2nd are still very much with us today. The long, arduous work of becoming the country to which we aspire remains. In these heavily-polarized times, it’s hard to look past party affiliation or vote choice. But to do so is more important than ever. It’ll take each and every one of us to create a more perfect union. It won’t be easy, it won’t happen as quickly as we need it to, and there will likely be many days where this struggle seems hopeless. The road ahead is difficult, but the fundamental truth of America is our capacity to produce our brightest moments from our darkest days. This week, maybe, just maybe, the long and winding road to justice has become a bit straighter. Take a deep breath, keep the faith, and meet the momentum.
Cannabis Post 1: Introduction
April 24, 2021
As more and more states pass cannabis legislation, it’s important for citizens to know enough about cannabis law to feel confident participating in the process of legalization. Since Washington and Colorado legalized recreational cannabis use in 2012, other states have followed suit with increasing frequency. Despite cannabis being recreationally legal in 16 states and DC (with legality pending in two additional states), there is still ambiguity and confusion surrounding cannabis laws. Do you know the difference between decriminalization and legalization? How about what happens to people serving jail sentences for cannabis offenses when cannabis is legalized? Cannabis prohibition’s racist history makes equitable legalization imperative, but that can be difficult to advocate for without a grasp on the logistics of cannabis law. This series will cover cannabis’s legal history and current legal status.
Cannabis legalization is a necessary step towards ending racist police violence. As long as people have biases (implicit or explicit), one of the surest ways to prevent negative officer-civilian encounters is simply to prevent interactions wherever possible. In 2018, there were nearly 700,000 cannabis arrests—43% of all drug-related arrests that year. According to the FBI, there were more cannabis arrests that year than arrests for all types of violent crimes combined. Between 2010 and 2018, nine out of 10 cannabis arrests were for possession. A black person is 3.64 times more likely to be arrested for possession than a white person, despite similar usage rates. A quick back-of-the-envelope calculation tells us that nearly 500,000 black people in 2018 had interactions with police officers that would not have happened if cannabis were legal. Give or take as much as you like on that estimate and it remains undeniably enormous.
While legalizing cannabis net positive, we can make it better by how we do it. The details of the legislation are key to making the legalization as fair and equitable as possible. Figuring out the nitty gritty is difficult because, for a number of reasons, cannabis law is muddled. Making something legal which was previously illegal is relatively uncharted territory, with the prohibition of alcohol in the 20th century being the most closely related previous instance. It can provide some guidance, but the differences in duration of illegality and cultural standing of the substances mean there is a lot the end of prohibition cannot teach us about how to legalize cannabis. Plus, cannabis legalization occupies a unique space in the relationship between state and federal law, and a lack of clear decision making from the federal government makes it unclear what exactly states are and aren’t allowed to do. Additionally, cannabis law is inherently racist in its roots, which necessitates equity considerations in legalization.
Follow along with the series to keep learning and always ask questions if you have them! An overview of each article will go up on instagram every week with a link in its caption to the full version. For the sake of contextualizing each article in the larger thread, here’s what you can expect to see:
Explanations of common terms: legalization, decriminalization, infraction, misdemeanor, felony
Explanation of the relationship between federal and state law in the context of cannabis legalization
History of cannabis law including political and racial motivations
Resentencing and expungement: what happens (or could/should happen) to people serving sentences or with criminal records for cannabis related offenses
The new cannabis industry: equity in license distribution
Sources (click to expand)