Legalization Is the Only Way to Improve the Criminal Justice System | Opinion

At this point, most people who have studied this issue (including Mr. Sabet) agree that the prohibition of marijuana has been a catastrophe. Police make hundreds of thousands of marijuana arrests each year—663,000 in 2018 alone—wasting time that could be spent solving and preventing serious crime. Black people are arrested at many times the rate of white people, though both groups use marijuana at about the same rates. And these arrests follow young people for life, preventing them from finding jobs, housing, college scholarships and eligibility for loans. Their opportunities to succeed become greatly reduced, often pushing them down the wrong path. It's a disaster.

Where Mr. Sabet and I differ is on what system should replace prohibition. He argues that we should decriminalize marijuana ("decrim") so that using it is legal, but selling it is not. On its face, that seems to make sense. But this betrays a deep misunderstanding of how the criminal justice actually works. And by the way, "decrim" was the failed alcohol model during Prohibition.

Much of the way police departments are evaluated—and, in turn, funded—is based on the number of arrests they make. In order to ensure they make as many arrests as possible, departments evaluate their officers on the same basis, giving out promotions and raises to those who bring in the most arrests. But as fans of The Wire know, there is a huge difference in the quality of those arrests.

If you put yourself in the shoes of an officer who is primarily being judged based on this metric, what's the most practical way to do your job? Is it spending untold hours, months and years researching and investigating the "kingpins" with armies of lawyers, or is it going after the easiest arrests—small-time drug sellers out in the open in poor neighborhoods?

The logical choice for all involved is one that results in a lot of low-level players being thrown into a criminal justice system. Many will never re-emerge. It also perpetuates huge racial disparities, because outdoor sellers are more likely to be people of color. And yet, this results in exactly zero effects to the market, overall.

It's not that these officers have bad intentions—they're just following the rules of the game.

Here are some more rules police don't like to talk about.

Claiming that you smell marijuana in a car or a house is one of the easiest ways to justify a search when you have no legal reason for conducting one. The absence of a smell is exceptionally difficult to prove after the fact, so it's one of the most effective ways to deny people their constitutional rights.

Decrim will not prevent these searches. In most states where we have decrim, the odor of marijuana is still probable cause to search a person, vehicle or home.

Because of this loophole, marijuana-related searches are the police tool of choice for money seizures under civil asset forfeiture programs—the most destructive aspect of the criminal justice system you've probably never heard of. Criminal forfeiture programs make a lot of sense. That's what we call it when someone is convicted of a crime and we take the proceeds from that crime. For example, someone steals a million dollars, and we confiscate the house and car they bought with that money. Civil asset forfeiture is another beast altogether.

In civil forfeiture, the police don't need a conviction. They don't even need to charge anyone with a crime. They just decide that an asset or a certain amount of cash is the result of illegal activity, and they take it. They charge the property rather than any person, because property has no constitutional rights—such as the right to due process. The owner can sue to get his/her property back, but the process is so expensive and complicated—for instance, the burden is on the owner to prove it wasn't used in a crime, rather than any presumption of innocence—that in most cases, it would be more expensive to challenge than to let the property go without a fight.

Crazy, huh? It gets worse. Police departments are usually allowed to keep large portions of this money, and often have little regulation as to what they do with it. They can give everyone a raise. They can buy new uniforms. They can even buy a margarita machine.

Almost 50 years of the so-called "War on Drugs" has proven that no matter how many billions we spend or how many millions we arrest, a criminal justice approach will not reduce the demand for marijuana. People are going to use it. That's just a fact. So the question is: Where should they buy it?

Under a legalization model, the answer is simple: They should buy from a regulated supply chain, in which grow facilities are monitored to ensure they follow environmental laws and the product stays within the legal system; in which dispensaries are licensed, taxed and subject to rigorous health and safety inspections; in which security guards stand watch and gatekeepers verify that every patron is of legal age; and in which every business pays its rightful share of taxes and generates local jobs.

Man smoking marijuana
Man smoking marijuana MIGUEL SCHINCARIOL/AFP via Getty Images

Under a decriminalization model, the only place to buy marijuana is through criminal organizations. Since these groups are already operating outside the law, they are willing to sell marijuana laced with harmful chemicals, and they are willing to employ and to sell to children.

I always say that the drug market finances every other type of illegal activity: human trafficking, gun sales, you name it. The biggest moneymaker is drugs. But here's the thing: If you treat marijuana like any other agricultural product (albeit with appropriate controls), the astronomical profit margins disappear. Earlier this month, congressional researchers just confirmed that Mexican cartels have been financially hurt by marijuana legalization in the United States.

And not only does making marijuana sales a criminal justice matter make them more profitable—as well as incentivizing sales to minors—but police intervention also makes the market more violent, both for the community and for the officers themselves. My colleague at the Law Enforcement Action Partnership, Detective Sergeant Neil Woods (Ret.), puts it this way in an article talking about how "photo-op policing" betrays the core principles of law enforcement: "It is a...universal truth of any prohibition regime that if you take out one kingpin, all you do is instigate a turf war between his lieutenants and rivals over his territory."

Like alcohol in the days of Al Capone, the violence and criminality comes from the fact that the product is illegal—not from the product itself.

Fortunately, we have an alternative. While Mr. Sabet has been very publicly predicting that legalization would lead to disaster since 2012, the results speak for themselves. Youth marijuana use has not risen in states that have legalized marijuana. Marijuana arrests have plummeted, and states have invested millions of new tax dollars in mental health treatment, schools, law enforcement training and addiction recovery resources.

Though the legal market is better for our communities and officers than the illegal market, we know it's still not perfect. The communities hit hardest by marijuana enforcement are in danger of being left behind. Most states prohibit people with past marijuana convictions, or who use marijuana, from entering the legal market. People on probation or parole can be sent to prison just for testing positive for marijuana. Marijuana dispensary owners are overwhelmingly white, because it takes substantial—in many cases, prohibitively so—up-front investment to win a license. Where we are headed is far better than the tragedy we leave behind, but we must hold ourselves accountable for change. I support efforts to invest tax revenue and encourage employment in communities most impacted by the War on Drugs. Legalization alone is not enough. We must work toward equity.

It has been twenty years since I realized that the War on Drugs took the life of my partner and gave the community he served nothing in return. Ever since, I have felt a duty to speak out about how marijuana legalization can reduce violence, criminal activity and community conflict with police, all without increasing youth use. During this same period, there has been a sea change in our nation, as two-thirds of Americans now support legalization. More than a quarter of the U.S. population now lives in a state where marijuana is legal for adult use, while the nightmares predicted by opponents have not come to pass. It is time to change the debate from whether or not to legalize marijuana to how we legalize marijuana to build the safe, just and healthy society we all want for ourselves and our children.

Major Neill Franklin (Ret.) was a police officer for 34 years and is now the executive director of the Law Enforcement Action Partnership, a nonprofit of police, prosecutors, judges, and other law enforcement who advocate for changes in the criminal justice system.

The views expressed in this article are the writer's own.