More than half of all states have taken some action to legalize or decriminalize marijuana, but using the drug is still a crime under federal law. Senators, including 2020 contenders Cory Booker (D-NJ), Elizabeth Warren (D-MA), and Bernie Sanders (I-VT), have proposed legislation to tackle this disconnect, and on Tuesday, Kamala Harris (D-CA) joined the fray.
Harris’s plan, one that she’s rolling out alongside House Judiciary Chair Jerry Nadler (D-NY), would decriminalize the possession of marijuana at the federal level, an effort backed by many of her fellow 2020 Democrats. Harris’s proposal goes one step further, however, imposing a 5 percent federal tax on the sale of marijuana that would be used, in part, to fund grant programs that help individuals who have been disproportionately penalized for marijuana possession in the past.
The introduction of this bill is the latest development in Harris’s shifting position on marijuana legalization, which she had once opposed as San Francisco district attorney. The scope of her proposal is notable, as is her collaboration with Nadler, who could help the measure get more expansive consideration in the House given his perch on the Judiciary Committee. Much like many other Democratic bills, it faces an uphill battle in the Republican-controlled Senate.
It’s important to note that Harris’s bill isn’t just focused on federal regulation of marijuana. It’s also dedicated to making sure individuals who’ve previously faced marijuana-related convictions have the infrastructure to reestablish themselves: Given the significantly higher conviction rates that people of color and low-income people have experienced for marijuana possession, Harris’s bill attempts to make sure that they would also share in the gains of the growing marijuana industry, now that legalization efforts have spread. This approach is similar to one taken by Sen. Kirsten Gillibrand, whose plan would also direct tax revenue to help communities harmed by racist drug laws.
According to Vox’s German Lopez, “a 2015 report from the Sentencing Project ... estimated that black Americans are 3.7 times as likely to be arrested for marijuana possession as their white counterparts, but only 1.3 times as likely to use pot.” Harris’s bill aims to acknowledge this disparity head-on, not only through the grants, but also by expunging any prior convictions tied to marijuana from an individual’s records.
It is one of the most progressive options offered by 2020 candidates thus far, says University of Denver law professor and marijuana policy expert Sam Kamin.
“As marijuana becomes legal across the country, we must make sure everyone — especially communities of color that have been disproportionately impacted by the War on Drugs — has a real opportunity to participate in this growing industry,” Harris said in a statement.
What the bill would do
Harris’s bill would give states the flexibility to determine how they intend to approach marijuana possession and sales — or even to continue criminalizing both. Currently, more than 25 states have already moved forward with their own marijuana policies, though they vary quite a bit.
As Lopez has written, 11 states and Washington, DC, have now legalized marijuana, while 15 states have decriminalized it. There’s a key distinction between the two:
Under decriminalization, possession of small amounts of pot no longer carries jail or prison time but can continue to carry a fine, and possession of larger amounts, repeat offenses, and sales or trafficking can still result in harsher sentences. Under legalization, penalties for marijuana possession are completely removed, and sales are typically allowed.
Harris’s bill does not prescribe a particular approach to the states, and wouldn’t prevent individual states from banning the drug within their borders — it simply removes the accompanying federal offense.
Her proposal would impose a 5-percent federal tax on the sale of marijuana in the states that have legalized it, a levy that’s similar to the federal tax that currently applies to the sale of cigarettes. Half the revenue from that tax would be funneled into a group of grant programs dedicated to ensuring that communities that have faced discrimination over marijuana possession reap the benefits of its legalization.
Those grants would fund job training, legal aid, and rehabilitation for individuals who’ve experienced marijuana-related convictions in the past. Additionally, they would help those “adversely affected by the War on Drugs” obtain licenses to sell marijuana, and give small businesses involved in marijuana sales and run by “socially and economically disadvantaged individuals” a financial boost.
The federal subsidies for marijuana-related businesses stood out to Kamin.
“You see the various candidates positioning themselves on this issue, and this is the most progressive one on that continuum,” he told Vox.
Harris’s bill also includes an important nondiscrimination tenet that ensures that individuals who have used or possessed marijuana in the past will still be eligible for public assistance, and won’t face negative effects under immigration laws. Currently, people convicted of marijuana possession can be barred from benefits, like access to public housing, and could face penalties, including deportation, in immigration cases.
Harris has shifted her position on legalizing marijuana
While running for president, Harris has come under scrutiny for her previous record on criminal justice reform, including her stance on marijuana legalization.
In her recent book, The Truths We Hold, Harris advocated for the end of the war on drugs and emphasized her support for policies legalizing marijuana. “The fact is marijuana laws are not applied and enforced the same way for all people,” she’s also said. “African-Americans use marijuana at roughly the same rate as whites, but are approximately four times more likely to be arrested for possession. That’s just not fair.” While in Congress, she’s backed bills including Booker’s Marijuana Justice Act.
Critics note, however, that these positions aren’t consistent with ones Harris held previously. For example, as Tom Angell writes for Forbes, Harris laughed when asked about another candidate’s support for legalizing marijuana in 2014. She also did not back a California measure in 2010 that would have changed state law in favor of marijuana legalization. The broader conversation about marijuana legalization has shifted significantly in recent years, and Harris’s views on the subject appear to have evolved with it.
“As a former prosecutor who did not endorse legalization in California, this is an opportunity for her to establish a new stance on this subject,” says University of Denver’s Kamin.