On September 30, one month before California votes to make recreational use of marijuana legal for adults, Governor Schwarzenegger signed Senate Bill 1449 into law. The new law downgrades the possession of an ounce or less marijuana from a misdemeanor to an infraction.
This development was rightfully applauded by the marijuana law reformers who had worked hard for its passage. But if Prop 19 -- the initiative to legalize marijuana in California -- fails, the infraction law may not be as big a victory as it seems. Supporters of Prop. 19 should not stay away from the polls on November 2 because they think the problem has been solved.
Every news story about the new law has repeated Gov. Schwarzenegger's claim that now punishment for marijuana possession is no different than for a traffic ticket. The Associated Press wrote that, "a new law makes possessing up to an ounce of marijuana in California no more serious than getting a speeding ticket." Associated Content reported the law will "reduce criminal charges from a misdemeanor to the mere status of a parking ticket -- with a $100 fine." Time Magazine's news feed wrote jokingly, "If you get caught with up to an ounce of marijuana you'll be in big trouble. In fact, you can get fined as much as $100. No kidding!" Those comments miss the mark; the $100 fine may be just the tip of a very big iceberg.
Drug possession convictions are far more harmful than parking tickets -- even if the charge is a "mere infraction". In New York City, where I work as a field researcher for the Marijuana Arrest Research Project, the indirect, or "collateral consequences" of two tickets for marijuana can be dramatic. Guilty pleas to two marijuana possession offenses make an immigrant deportable, a public housing resident subject to eviction, and a college student ineligible for financial aid. Children can even be removed from mothers because of a positive marijuana drug test. New civil penalties for petty drug offenses -- which bar people from job licenses and housing subsidies -- are passed regularly by many politicians who view the penalties as an inexpensive way to establish their law and order credentials.
The availability of criminal records makes it almost impossible for law enforcement to impose minor punishments, slaps on the wrists, or warnings. Today, for a relatively small fee or even for no fee at all, employers, landlords, credit agencies and schools routinely conduct criminal background checks on any and all applicants. The stigma of a criminal record has already created huge barriers to employment and education for hundreds of thousands of Californians.
These marijuana possession arrests and their consequences are not evenly or fairly distributed among the population. Police departments almost everywhere concentrate their patrols and stop in low-income neighborhoods, which are also disproportionately black and Latino neighborhoods. As a result young blacks and Latinos, who use marijuana at lower rates than young whites, are disproportionately stopped, searched and arrested for possessing a small amount of marijuana. These same young people are the most adversely effected by criminal records and civil penalties.
Studies by the Marijuana Arrest Research Project have demonstrated that these racially-skewed or biased marijuana arrests are going on in cities and counties throughout California. For example, police in Los Angeles arrest blacks for marijuana possession at seven times the rate of whites. In Pasadena police arrest blacks at over twelve times the rate of whites. These statistics have moved the president of the California NAACP to call marijuana law reform a civil rights issue. This racially biased and discriminatory enforcement is firmly entrenched.
Changing misdemeanors to infractions will not address, nor is meant to address, these trends in policing. Infraction tickets will be given out to the same young people who are disproportionately arrested. People who failed to pay a fine on a previous infraction can be arrested, fingerprinted and charged with a misdemeanor. The suspicion of marijuana use will still empower the police to stop and question many more people. People stopped by the police who do not have proper identification can be handcuffed and brought to the precinct to check fingerprints. Police stops also result in plenty of arrests where "disorderly conduct" or "resisting arrest" is the only charge. As a field researcher, I speak to arrestees and defense attorneys and constantly hear the stories of pointless arrests.
As long as marijuana is illegal, California law enforcement will use possession of marijuana to bring mostly low-income blacks and Latino's into the criminal justice system. On the other hand, legalization of marijuana possession would be a major victory for civil rights in America.