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News Opinion Editorial

Maryland's new Jim Crow

The good news, such as it is, from the American Civil Liberties Union's report on racial bias in marijuana enforcement is that blacks in Maryland are only about 2.9 times more likely to be arrested for possession of the drug than whites. That's actually somewhat better than the national average.

The bad news: Maryland was No. 3 among the states in per-capita arrests for marijuana possession in 2010, the last year for which data are available. Baltimore City had the fifth-highest number of arrests of African-Americans on marijuana possession charges among large counties (or in our case, county equivalents) nationwide — far in excess of what its population would warrant. Nearly 92 percent of those arrested for marijuana possession in the city that year were black. Worcester County, home of Ocean City, had by far the highest marijuana possession arrest rate for all races of any county in the nation with a population of at least 30,000. Baltimore City ranked fifth on that list. The rate of possession arrests for whites in Baltimore dropped more than 20 percent since the peak of its O'Malley-era zero-tolerance policing strategy, but the rate for blacks actually went up by 20 percent since then. Maryland spends more than $100 million a year to arrest, prosecute and incarcerate people arrested for marijuana possession, the ACLU estimates.

According to surveys of drug use, whites and blacks are about equally likely to smoke marijuana, but the ACLU's analysis of federal crime statistics found almost universal racial disparities in arrests. In the worst state, Iowa, the per-capita marijuana possession arrest rate for blacks is eight times greater than it is for whites, but blacks are at least twice as likely to get arrested in all but four states. In only one state, Hawaii, is there no racial disparity. The trend holds in almost every county in every region, regardless of the racial and economic makeup.

The report comes at a time when the nation is undergoing a profound shift in its attitudes toward marijuana. In two states, Colorado and Washington, voters have approved full legalization of the drug. Nineteen states and the District of Columbia allow the use of marijuana for medicinal purposes, and 15 states have decriminalized the possession of small amounts of the drug. A Pew Research poll in April found that the number of Americans who have tried marijuana at some point in their lives has increased in the last decade, and a majority now support legalization. Nearly three-quarters said that the government's efforts to support marijuana laws aren't worth the cost.

Yet the number of marijuana possession arrests in the last decade rose significantly. Nationally, the per capita arrest rate rose by 18 percent from 2001-2010; in Maryland, it was up nearly a quarter. The ACLU report posits a number of explanations for the rise in arrests, including the "broken windows" theory of policing, CompStat and other data-based management techniques used by the police, and the existence of federal grants that use arrest numbers as a performance metric for law enforcement.

Whatever the reason, it is undeniable that the brunt of this enforcement effort has fallen on minorities, and African-Americans in particular — even in a city like Baltimore, where blacks make up more than 60 percent of the population and where most elected officials are black. The arrest rate for marijuana possession for African-Americans in the city is more than twice the national average. The consequences of this disparate enforcement are severe — including lost jobs, lost housing and lost eligibility for some public assistance.

Baltimore State's Attorney Gregg Bernstein has sought to expand use of a "diversion" program that offers those arrested for marijuana possession the chance to perform community service in exchange for charges being dropped. It's a good idea that relieves crowded court dockets and avoids tagging minor offenders with criminal records. But it reaches only about a quarter of those charged with marijuana possession, and it neither fully avoids the waste of state resources nor atones for the disparity in enforcement.

Even with diversion, the toll of marijuana arrests can be severe, particularly for the poor. At a minimum, an arrest involves hours in Central Booking, and in the cases of those who can't afford bail, it can mean 30 days or more in detention while waiting for trial. The process becomes the punishment.

As might be expected, given Maryland's aggressiveness in enforcement, the state's leaders have been slower than those elsewhere to liberalize marijuana laws. In 2003, Maryland enacted a law that allowed defendants to claim medical necessity as a defense in marijuana possession cases, and if the judge agreed, the maximum penalty was a $100 fine with no jail time. Last year, lawmakers reduced the penalty for possession of 10 grams or less to no more than 90 days in jail and a $500 fine. And this year, after several failed attempts, the legislature enacted a bill that will allow some patients to legally obtain and use the drug under close medical supervision.

Meanwhile, though, state Sen. Bobby Zirkin, an Owings Mills Democrat, introduced legislation to decriminalize the possession of small amounts of marijuana. It called for possession of less than 10 grams — about a third of an ounce, or enough for a dozen or so joints — to be a civil offense punishable by a maximum fine of $100. Sen. Allan Kittleman, a Howard County Republican, signed on as a co-sponsor, and the bill passed the Senate easily, 30-16. It attracted support from an odd coalition, ranging from the chamber's most liberal Democrats to some of its most conservative Republicans. Even so, it never got a vote in the House Judiciary Committee.

Cynics saw that rejection as the work of the defense attorneys who dominate the committee — and who would presumably lose a burgeoning line of business if marijuana were decriminalized. But the bill also faced opposition from law enforcement officials, who testified against it in a way consistent with Maryland's entirely inconsistent attitude about the drug. They argued, essentially, that enforcing marijuana possession laws isn't a high priority but that the illegality of marijuana is a useful tool for them because police can use the odor of marijuana smoke as a pretext to search people in the service of investigating more serious crimes.

No doubt such searches do sometimes produce evidence that leads to more serious charges. But most of the time, they don't. And what happens then? Sometimes, the offender is let off with a warning, and sometimes he or she is arrested and booked, setting off a lengthy, expensive and damaging chain of events. The whole process is built on layers of discretion, from search to arrest to bail to prosecution to sentencing — and whatever the intentions of those involved, the effect is, without question, racially disparate.

The national rise in marijuana arrests during the last decade has done nothing to reduce the use or availability of the drug. But it has cost taxpayers tens of billions of dollars and diminished the life prospects of millions of people, disproportionately African-Americans. The system is frequently, and not inaptly, dubbed the new Jim Crow.

None of this is to say that marijuana is harmless. Like alcohol, it causes impairment that can have dangerous consequences. As a society, we do not need to encourage its use. Maryland does not need to go so far as Colorado and Washington; the effects of their experiments with legalization are far from certain. But we should recognize that the way our laws are now being carried out is ineffective and profoundly unjust. When Mr. Zirkin reintroduces his bill next year, the House owes it more than a summary dismissal.

Copyright © 2014, The Baltimore Sun
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