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Will marijuana decriminalization end the racial grass gap?

As the politics of pot shift, questions of justice remain.



Many cannabis enthusiasts saw it as another reason to light up: in a span of three days, the Cook County state's attorney and the Illinois house both took steps to reduce penalties for marijuana possession.

But in some parts of Chicago, people were still getting busted for pot. Police made at least 212 arrests for misdemeanor possession that week, a rate of 30 per day, according to Chicago police data. More than 90 percent were in predominantly black neighborhoods.

Amid a national debate on race and the criminal justice system, the politics of pot are clearly blowing in a new direction. Simply put, it's no longer wise for an elected official to call for cracking down on low-level drug offenses.

But the shift has also created a jumble of laws and policies that continue to send some people to jail for the same behavior that's overlooked, laughed off, or even celebrated for others.

It's the latest incarnation of what the Reader calls the grass gap: while people smoke marijuana all over Chicago—and Illinois, and beyond—almost everyone busted for it is black.

Ending this racial imbalance has become a top goal of elected officials and policymakers who see it as emblematic of the failed war on drugs.

"Anything that takes a meaningful step toward not trapping black and brown men like myself in a cycle of poverty and prison, I'm behind," says state representative Christian Mitchell, a chief sponsor of the house bill to loosen pot penalties.

So far, though, the gap has remained stubbornly in place.

In 2011 my colleague Ben Joravsky and I reported that African-Americans accounted for 78 percent of those arrested, 89 percent of those convicted, and 92 percent of those jailed for misdemeanor marijuana possession in Chicago, leaving thousands with criminal records for doing something that routinely went unpunished in other parts of the city.

Citing those findings, the Chicago City Council passed an ordinance in 2012 to go easier on some pot possessors. Under the new rules, police officers were allowed to issue tickets to those caught with up to 15 grams (about half an ounce) instead of hauling them to the station to be booked and locked up.

The measure succeeded in reducing busts. In 2010, police made more than 22,000 arrests for misdemeanor possession. Last year the total fell to about 12,800, the lowest in two decades, according to police data.

Yet the grass gap hardly budged. In 2014, 76 percent of those arrested for low-level pot possession were black, 19 percent were Hispanic, and 5 percent were white—almost exactly the same breakdown as before the new rules were enacted.

Disparities existed almost everywhere in the city, even in areas with relatively small black populations. African-Americans accounted for a majority of pot possession arrests in all but 97 of the city's 268 police beats. In contrast, though more whites live in Chicago, they made up the majority of arrests in only 13 beats—and in ten of those, fewer than ten people were arrested.

Marty Maloney, a spokesman for the Chicago Police Department, points to the drop in total arrests as a sign of the department's commitment to making enforcement "even more effective and fair." "The City's cannabis ticketing initiative has already kept thousands out of jail," he wrote in an e-mail.

Unfortunately, thousands are still going there.

After being arrested, offenders are held in police lockup for hours. Many are then transferred to the county jail before they're given a court date and released.

Most misdemeanor marijuana cases are eventually thrown out of court at the discretion of prosecutors and judges. Those that move forward usually involve repeat offenders, but not always. People who've spent a day or two behind bars often plead guilty in return for a sentence of the time they've already served.

All told, 1,263 misdemeanor marijuana cases resulted in jail time last year in Cook County, according to data from the circuit court clerk's office. In almost all of these cases—84 percent—the defendants were African-American.

In short, while pot has essentially been decriminalized for some people, it still lands others behind bars. And in addition to being unfair, the system is expensive. These misdemeanor pot cases cost county taxpayers approximately $38 million in court and jail expenses in 2014.

"What happens is that you get a kid—and maybe he's trying to make some money or maybe he made a dumb mistake—but he gets caught and he's got a scarlet letter," says Mitchell. "He can't apply for school loans, it's harder to get a job, and he ends up back on the street. He ends up getting in deeper trouble."

Elected officials are increasingly finding the system hard to defend. On April 20, Cook County state's attorney Anita Alvarez held a press conference to announce that her office would no longer prosecute many low-level drug offenders, including those nabbed for the first or second time with up to 30 grams of marijuana. Repeat offenders would be given the option of attending an education program in lieu of prosecution.

"I have come to the conclusion that what we're currently doing in Cook County to handle drug cases is not working," Alvarez said.

It was a sharp turn in rhetoric for the state's attorney. As other officials called for reforms three years ago, Alvarez expressed skepticism about decriminalizing marijuana, which she called a "gateway drug." Alvarez denied that politics factored into her announcement, though she's up for reelection next year and is well aware that the landscape is changing.

Three days later, the Illinois house voted 62-53 to pass a bill that would make the possession of up to 15 grams of cannabis a petty offense, punishable only with a ticket. That means police across Illinois, including those in Chicago, would no longer have the option of making an arrest. The bill would also turn the possession of larger quantities—up to 100 grams, or 3.5 ounces—into a misdemeanor offense rather than a potential felony.

The bill was shepherded through the house by north-side representative Kelly Cassidy and her Democratic allies, including Mitchell. But two Republicans also signed on as cosponsors, and it's expected to have the support of Governor Bruce Rauner, another Republican, who's taken up criminal justice reform in an effort to save money.

"They now see this as a way to address the kind of overkill that we've done in the system," Cassidy says. "We just can't afford to enforce the policies of the 80s and the 90s anymore."

Alvarez and Emanuel have also backed the bill, which could be approved by the state senate within the next month.

There's no doubt that, if passed, the legislation will further reduce the number of people arrested and prosecuted for possessing marijuana. But by itself it is unlikely to end the racial gaps in who's picked up by police.

Here's why.

Cops say the grass gap is the result of aggressive patrols in high-crime neighborhoods. Officers charged with reducing violence pull people aside for interviews—Chicago's version of stop and frisk. While arrests consume two to four hours of an officer's time, police say they can also be useful in leveraging drug sellers and gang members for information, or simply getting them off the street for awhile.

When low-level possession is decriminalized, police will probably issue more tickets—but even then African-Americans will bear the brunt of enforcement.

That's what's happened in Chicago. As marijuana arrests fell, the number of cannabis citations shot up from 1,074 in 2013 to 4,032 in 2014, police data show. And the vast majority—78 percent—were issued to African-Americans. Just 16 percent went to Hispanics and 5 percent to whites.

When possible, cops will arrest offenders on different charges—such as possessing more than 15 grams, or possessing with the intent to deliver, the formal charge for dealing.

Police, prosecutors, and politicians acknowledge that decriminalization won't address the economic roots of the grass gap either. Many of those prosecuted in the last couple years are repeat offenders who appear to have been selling to make money, according to police reports and court records.

Consider Matthew D., a 22-year-old who lives in East Garfield Park. He's never been charged with a violent offense. But he's been picked up for the misdemeanor possession of cannabis at least 14 times.

On four occasions in 2013, he sat in jail for two days before appearing in court, where he pleaded guilty and was sentenced to the time he'd already served. After he was released, Matthew went back to work. He was caught with pot four more times in 2014. Last July he was locked up for four days.

In January Matthew was arrested again after police responded to a report of a young man in a white jacket selling drugs outside a west-side Citgo station. Matthew fit the description, according to the report from a responding officer.

Matthew wasn't carrying any pot, though—just $320 in cash. So the police charged him with trespassing. After being locked up for two days, he again pleaded guilty and was sentenced to the time he'd spent in jail.

Despite the complications, sponsors say the new state legislation would keep more people—mostly black men—out of the criminal justice system. And it could serve as an interim step toward legalizing, regulating, and taxing marijuana for recreational use.

"If we do this and the world doesn't go up in flames—or shall I say smoke—then we can keep on going down the path forward," Mitchell says.

But not for a while. A few minutes after the house passed the decriminalization bill, a proposal to study legalization—and only study it—was called to the floor. It failed by a vote of 29-78-1.  v

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