By David Bergh
Associate Editor, Volume 23
Over the past few decades there has been a sea change in the American public’s attitude towards marijuana prohibition. In 1990 only 16% of the US public supported legalization, and 81% were opposed. Twenty seven years later the numbers were 61% in favor of legalization and 37% against. This tectonic shift in opinion is reflected in the fact that there are now 29 states, including Michigan, with medical marijuana programs. Additionally, nine states and the District of Columbia have legalized the recreational use of marijuana. Michigan looks set to join the recreational club this November, as the Michigan Marijuana Legalization Initiative is all but certain to appear on ballots for the 2018 election. The ballot initiative proposes to legalize the recreational use of marijuana for persons 21 and older. Those wishing to sell or produce recreational marijuana will need to obtain a license from the state, and local governments will be able to decide if they want to allow recreational marijuana business within their borders. While the passage of the Michigan Marijuana Legalization Initiative would be a step forward towards addressing the racially disparate impact of the War on Drugs, the proposed Act is no panacea.
The movement toward legalization and the public’s growing acceptance of marijuana has thrown the racialized impact of the War on Drugs into sharp relief. On one hand the New York Times trumpets the investment opportunities that the legalization movement has created, and white millennials flock to “ganja yoga” classes in San Francisco. On the other hand Black Americans continue to bear the brunt of drug enforcement, with a police raid on a birthday party in Georgia that led to the arrest of 63 people for less than an ounce of marijuana being only the most recent and widely reported example. So far, neither the nation’s changing marijuana laws, or the shift in public opinion have had a positive effect on the War on Drugs. Marijuana arrests rose in absolute terms from 2000 to 2013, and Blacks are still nearly four times to be arrested for marijuana possession than whites, despite nearly identical rates of usage. This disparity in the treatment of marijuana use is particularly severe in some parts of Michigan, with Black residents of Monroe, St. Clair and Jackson counties being 15 times more likely to be arrested for marijuana possession than their white peers. This reflects the fact that Michigan’s prison population is majority-minority, despite non-Hispanic whites accounting for more than 75% of the state’s population. Even discounting a jail sentence, the effects of a marijuana arrest can be serious and long-lasting. Having a possession arrest on your record can affect custodial rights, public benefits, financial aid for college, and employment prospects, as having any criminal record, even for a minor drug arrest, cuts a job applicant’s chances of getting a call-back in half.
The disturbing iniquity of the enforcement of our existing drug laws reveals a major flaw in the Michigan Regulation and Taxation of Marihuana Act – it contains no provision retroactively pardoning those who have been subject to the state’s criminal justice system for minor drug infractions. While a competing initiative that would amend the State’s Constitution to prohibit any enforcement of marijuana laws does contain a provision that would retroactively pardon everyone arrested under the state’s drug laws, it has not attracted the support that the Michigan Marijuana Legalization Initiative has, and seems unlikely to gather the 315,654 signatures required for a constitutional amendment. This leaves those who view marijuana law reform as a racial justice issue in the stickiest of situations, as the passage of the Michigan Marijuana Legalization Initiative may create the notion that the War on Drugs has been ended in Michigan, while those subject to prior drug arrests are left to languish. Conversely, it makes little sense not to support the initiative, as taking the cudgel of marijuana prohibition from police departments is a worthy achievement, even if there is no retroactive effect. In one respect the Michigan Marijuana Legalization Initiative is an improvement on similar legalization efforts in other states, as it allows those with prior marijuana convictions to apply for the licenses required to participate in the recreational marijuana industry. While it remains possible that the day may come when the state’s voters will support retroactive pardons for those convicted of marijuana, it is hard not to see the deficiencies of the Michigan Marijuana Legalization Initiative as a lost opportunity, as a legalization initiative with retroactive effect would almost certainly pass in November, giving thousands of unjustly arrested Michiganders a chance at a better life.
 US Public Opinion on Legalizing Marijuana 1969-2017, Pew Center, http://www.pewresearch.org/fact-tank/2018/01/05/americans-support-marijuana-legalization/ft_18-01-05_marijuana_line_update/.
 State Medical Marijuana Laws, National Conference of State Legislatures, http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.
German Lopez, ed., Marijuana Has Been Legalized in Nine States and Washington, DC, Vox, https://www.vox.com/cards/marijuana-legalization/where-is-marijuana-legal.
 Michigan Marijuana Legalization Initiative, Ballotpedia, https://ballotpedia.org/Michigan_Marijuana_Legalization_Initiative_(2018) (the initiative has gathered approximately 365,000 signatures, 252,532 valid signatures are required for it to appear as a ballot initiative; as noted below polling of the Michigan electorate shows significant support for the proposal).
 Michigan Regulation and Taxation of Marihuana Act, qtd. in id.
 Paul Sullivan, As States Legalize Marijuana, Investors see Opportunity, New York Times (Jan 27, 2018), https://www.nytimes.com/2018/01/26/your-money/marijuana-investments.html.
 Melia Robinson, San Francisco’s New Workout Craze is Called ‘Ganja Yoga’, Business Insider (Jan 10, 2017), http://www.businessinsider.com/ganja-yoga-review-san-francisco-2017-1.
 Dominique Mosbergen, Less than One Ounce of Marijuana Leads to Arrests of More than 60 Georgia Partygoers, Huffington Post (Jan, 3 2018), https://www.huffingtonpost.com/entry/marijuana-ounce-arrests-georgia_us_5a4c5785e4b06d1621bb9898.
 The War on Drugs in Black and White, American Civil Liberties Union, 14-22 (2013), https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf.
 Michael Kiehne, Why Diversity Still Matters, 96 Mich. B.J. 22, 24 (2017).
 Michigan Retroactive Marijuana Legalization Initiative (2018), Ballotpedia, https://ballotpedia.org/Michigan_Retroactive_Marijuana_Legalization_Initiative_(2018).
 Michigan Regulation and Taxation of Marihuana Act, qtd. in Ballotpedia, https://ballotpedia.org/Michigan_Marijuana_Legalization_Initiative_(2018) (applies so long as the person in question was not convicted of distributing marijuana to minors).
 Recent polls show that 57% of Michiganders support legalization, with 37% opposed. While these numbers reflect the current initiative, it seems doubtful that the details of the initiative would materially affect its support: Marijuana Business Daily, Poll: 57% of Michigan Voters Back Recreational Marijuana Legalization (Jan 4, 2018), https://mjbizdaily.com/poll-57-michigan-voters-back-recreational-marijuana-legalization/.