So much of the conversation [about legalizing cannabis] became dominated by typical economic incentives . . . that were divorced from justice in ways that were fairly disturbing. . . . I think that we didn’t understand the ways that the economics of racial inequity in business at large in America was going to replicate itself in this area.—Tamara (cannabis activist)
It’s just been hurtful to watch how the Black community’s been excluded, how the Black community has not been given true information on how to get into the industry, how to sustain in the industry. . . . Legal cannabis, man, is really a trick to me.—Guy (cannabis activist)
We misarticulated what it was we were looking for. . . . We made a shorthand which said legalization. . . . We were actually asking for freedom in cannabis, but [legalization] . . . was merely the framework to allow those who misunderstand the plant to take control.—Harriet (illicit cannabis business owner and activist)
Bob Marley and the Wailers had been performing professionally in Jamaica for nearly a decade when they finally broke through in the United States with Burnin’ in 1973. The album caused a furor. Songs like “I Shot the Sheriff” and “Burnin’ and Lootin’,” which paint a dark picture of authoritarian terror, and compel listeners to rise up against the state using violent imagery, were terrifying to many white suburbanites. The album art was just as controversial as the music. The back of the album featured an artistic rendering of a defiant, dreadlocked Marley smoking a massive conical “joint” of cannabis, and the album included many full-color photos of Black men in Kingston sporting dreadlocks and smoking large joints. Marley biographer Timothy White explains how the American press initially reacted to the band:
A lot of people believed that a Mau Mau–inspired cult of demonic antiwhite murderers had been uncovered in the Caribbean. The music conjured up images of white tourists being hacked to death on the fringes of tropical golf courses. . . . The American press . . . began running long, detailed pieces on this Jamaican cult that . . . smoked more pot than the populations of Haight-Asbury and Greenwich Village combined. It was a good story . . . falling right in line with the rest of the cult stories they’d been uncovering: the Manson family, the Lyman family, the Children of God, the acid churches, the suburban witch covens. (White 2006, 261)
This militant image of Marley persisted until after his death. Toward the end of his life Marley complained to his biographer that most reporters still treated him as “a novelty figure or a noble savage, surprise he could read, write or express himself beyond expounding on biblical tracts” (White 2006, 447).
The times they are a-changing. Today, Marley would probably be surprised to find that in many US states customers can now walk into a sleekly designed dispensary reminiscent of an Apple store and legally purchase a wide array of cannabis products branded in his name. “Marley Natural” is, according to the company’s website, “the official Bob Marley cannabis brand” (Marley Natural 2022). The line is owned by the private equity firm “Privateer Holdings,” a massive cannabis consortium based in Seattle, which also owns the popular cannabis brands “Leafly,” “Docklight Holdings,” “Left Coast Ventures,” and the Canadian medical cannabis company “Tilray” (Seven Hounds Ventures 2020). It must compete for shelf space with other celebrity cannabis lines and their corporate sponsors, including “Willie’s Reserve” by country singer Willie Nelson, “Chong’s Choice” by comedian Tommy Chong, and “Leafs by Snoop” by hip hop artist Calvin Broadus Jr., better known as “Snoop Dogg” (Peake 2020).
These changes should be exciting for the cannabis activists, consumers, medical patients, industry workers, and business owners who make up what I will refer to in this book as the “cannabis community.” Many have spent decades fighting for cannabis reform. They believe that the US government’s highly punitive approach to drugs has been a destructive and ultimately futile effort—one that has caused untold damage to the lives of millions of Americans, especially communities of color (Criminal Justice Policy Foundation 2019; Drug Policy Alliance 2022; ACLU 2022). Some see the creation of a new legal cannabis industry, with its enormous profit potential, as a once-in-a-generation chance not just to end the destructive effects of cannabis prohibition, but also to repair some of the damage that has been caused by it (Koram 2022).
Yet, as the epigraphs at the beginning of this chapter indicate, legalization has not been the boon to these communities that many cannabis activists had hoped for. Though a few Black celebrities have been able to capitalize on the growth of corporate cannabis, most of the wealth produced by this new legal cannabis industry has become increasingly concentrated in the hands of those who already enjoy power and privilege. Only a tiny fraction of the legal cannabis businesses that are currently being operated in the United States are owned by people of color, and almost no one who suffered significant consequences from the War on Drugs is currently making money in the legal cannabis industry.
How did this happen? And what if anything can be done about it? In this book, I take up these and other questions by examining the project of cannabis reform from a law and society perspective. Cannabis has received an uptick in scholarly attention of late, with hundreds of interdisciplinary “cannabis studies” programs forming at colleges and universities across the United States (Avetisian and Stone 2022). This suggests that cannabis studies is an emerging field of academic research centering on the cannabis plant, the people who care about it, and the intellectual, social, and cultural contexts that give meanings to it (see, for example, Corva and Meisel 2022). Yet sociolegal scholars have, until this point, largely ignored cannabis (but see: Aviram 2015, 78–97; Garriott 2020). In this book I argue that law and society offers a unique perspective, with valuable insights to contribute to our understanding of cannabis reform. In the remaining sections of this chapter, I elucidate some of these contributions by providing a discussion of the scholarly debates that undergird the arguments made here. I then explain the research design and methodology used for this project and conclude with a brief overview of the arguments I make in subsequent chapters of this book.
“Law and society” is an interdisciplinary approach to the study of law that seeks to move beyond the traditional court-centric focus of most legal scholarship. Sociolegal scholars challenge the conventional idea that legal meaning is the product of formal legal actors such as judges and lawyers. Instead, they conceptualize law as a bottom-up phenomenon in which sociocultural understandings filter into the courtroom, shaping the beliefs and actions of these actors. This insight can be seen as an extension of the realist critique of law that emerged in the United States during the early part of the twentieth century (Holmes 1897). Those scholars criticized the conventional understanding of law as an arena of reason in which questions are answered through dispassionate analysis of case precedent or legal statutes. They argued instead that law is a political process, and that legal decisions are often arbitrary or capricious.
One of the most fundamental insights of law and society scholarship is that law is essentially everywhere. The United States is a law-obsessed country. Whether we are aware of it, or not, our culture is shot through with legal symbols and discourse. This means that even though most Americans will spend little time inside of a courtroom, they will live their entire lives in the shadow of the law (Calavita 2016, 37–58). This creates an omnipresent legal culture that influences our thoughts and behavior in often imperceptible ways. These cultural understandings shape how we see the law and, in turn, these conceptions of legality shape the way that we see ourselves (Silbey 2005). In order to understand this dynamic, sociolegal scholars encourage researchers to focus on “the common place of the law” by studying how popular understandings of law are formed outside of the courtroom (Ewick and Silbey 1998; Gilliom 2001; Lovell 2012). These scholars often refer to the common understandings of the law that we develop as a result of this cultural contestation as our “legal consciousness” (McCann 1994; Engel and Munger 2003).
Perhaps no issue better demonstrates the cultural construction of legality than cannabis. Law is central to the project of cannabis reform. The word “law,” in all of its various manifestations, is often used as a shorthand to indicate legitimacy by the people in this movement. The slogan most commonly used by supporters of cannabis reform is simply “legalize it!” and people in the cannabis community often talk about cannabis as a civil rights issue, or mention the need to “get legal,” or “be legal.” It is perhaps unsurprising that a community built around what has, until very recently, been an illicit substance would have a particular fascination with the law. Members of this community have grown accustomed to trading stories about drug busts, giving detailed information about existing drug laws, and providing legal advice to one another. These stories highlight a persistent fear of legal reprisal that has long permeated the cannabis community. Millions of cannabis users throughout the United States have lived under constant threat that they may lose their jobs, be incarcerated, or have a drug conviction placed on their permanent record. As a result, many in the cannabis community have chosen to keep their activities private, hiding out in what a number of my interviewees referred to as the “cannabis closet.”
This is because cannabis prohibition has always been less about what cannabis does to us and more about what we think of the people who we believe to be using it. Drugs like cannabis are threatening to many because, they represent a loss of physical control, which clashes with Western notions of citizenship that place a premium on individual self-discipline (Manderson 1999, 182). This loss of control is particularly anxiety provoking when it is thought to be coming from racial, ethnic, or cultural “others.” This is certainly the case with cannabis, which first became illegal in the United States as a result of moral panics directed at “deviant” racial out-groups, especially Mexican laborers and Black jazz musicians (Courtwright 2001, 39–46). During the 1930s newspapers often ran patently false, sensationalized stories of Black and Mexican “marijuana addicts” being driven insane, committing murderous crime sprees, and raping children (McWilliams 1990, 48–54). Later as cannabis became associated with the 1960s counterculture, cannabis users were derided as “burnouts” or “slackers” who rejected longstanding American values by expressing defiance toward authority and refusing to participate meaningfully in the economy (Himmelstein 1983; Baum 1996).
In this book I make use of culturally informed scholarship in order to better understand the cultural contestation that is at the heart of the struggle for cannabis reform. Many sociolegal scholars have made the “cultural turn” of late, focusing on how law and culture intersect to create legal meanings (Calavita 2016, 171–88). “Culture” is a slippery term, and there are many different ways of conceptualizing it. One way that law and society scholars have sought to study culture is by articulating how cultural images are themselves a form of law. This approach, sometimes referred to as “law in the image” (Sarat 2000, 9), tends to focus on popular depictions of law that are found in books, movies, and television shows, in order to better understand how these images shape our legal consciousness.1 Other sociolegal scholars have conceptualized culture by borrowing more heavily from legal realism. This scholarship examines the ways in which the cultural assumptions of a given society work to shape the construction of the formal “law on the books,” as well as the more informal “law in action” (Mezey 2003). This suggests that legal meaning comes not from the top down, but from the bottom up, a concept that some scholars have termed “popular constitutionalism” (Schmidt 2018).
I engage with both notions of legal culture at times during this project. I am, however, primarily focused on understanding the cultural context in which cannabis legalization has emerged. I am particularly concerned with understanding how this cultural context has impacted the development of the cannabis reform movement, the construction of the legal regulations and policies governing cannabis, and the legal consciousness of the cannabis community. This cultural contestation is important because it shapes the parameters under which members of the cannabis community are able to successfully articulate new rights claims.
In the United States we often conceptualize rights as resources that are granted to all citizens equally. In the Declaration of Independence, Thomas Jefferson expressed a vision of individual rights that was universal, famously decreeing that “all men are created equal.” But this “American creed” was, of course, written by a slave master, revealing itself to be more aspiration than reality. Indeed, one of the central insights of sociolegal scholarship is that rights are contingent resources (Dudas, Goldberg-Hiller, and McCann 2015). By this we mean that our willingness to recognize the legitimacy of someone’s rights claim is dependent upon how closely the claimant emulates the characteristics of what is perceived to be a valued American citizen (Goldberg 2007; Bridges 2017).
This dynamic is no mystery to social movement activists, who have often sought to frame their cause in ways that will be more acceptable to a mainstream audience. Scholars of race and ethnicity have, for example, argued that members of minority groups frequently engage in “respectability politics” (see, for example, Higginbotham 1994, 185–230; Harris 2014). Marginalized groups often attempt to frame themselves as legitimate citizens who are deserving of rights, by distancing themselves from members of their community who fall outside the bounds of mainstream acceptability, while simultaneously elevating the visibility of those members who conform to widespread norms of cultural respectability.
Cannabis legalization has emerged as a viable policy idea in the United States during a time in which neoliberalism is culturally ascendent.2 In this book I show how the cannabis community has coped with this cultural environment by engaging in a kind of “neoliberal respectability politics,” elevating the voices of those in their community who conform to this ethos, while at the same time minimizing the visibility of those who do not. I show how some reformers have sought to challenge the stereotypical view of those who use cannabis as dangerous criminals or lazy slackers by offering a conception of the cannabis user as a “normal,” productive citizen. Key to this shift in identity has been the cultivation of an image of those who use cannabis as industrious individuals who participate productively in the economy as workers, entrepreneurs, and consumers.
It is unclear what, if any, impact framing cannabis in this way actually had on convincing more Americans to approve of cannabis legalization. What is clear, though, is that many people within this community believed that framing cannabis in neoliberal terms would be beneficial to these efforts. As a result, they often wrote laws that constructed regulatory schemes for legalizing cannabis that favored corporate interests, and sidelined many longtime cannabis activists whom they perceived as hostile to this agenda. In addition to emphasizing the profit potential of cannabis, many advocates of legalization also sought to move cannabis away from its counterculture roots by minimizing the visibility of those within the cannabis community who do not fit well into this neoliberal narrative (Bender 2016; Schlussel 2017). Such a stance overwhelmingly benefits the primarily white, upper-, and middle-class Americans who have the business acumen and the financial means to invest in and profit from this new industry. However, it does little to help repair the damage done to Black and Latino communities, who have been the primary targets of punitive drug policies and who often face steep barriers to entry that prevent them from participating in the legal cannabis industry (Orenstein 2020).
Indeed, it is not entirely correct to say that some states have legalized cannabis for everyone over the age of twenty-one. It is more accurate to say that they have legalized cannabis for those privileged people who are willing and able to operate within the capitalist framework of the retail marketplace (Garriot 2020; Polson 2022). In this marketplace cannabis is often sold at prices much higher than is typically seen on the illicit or the unregulated market, and it is governed by a maze of formal regulations and informal customs, which require considerable legal expertise and legitimate business experience to navigate effectively. Instead of addressing these issues, many states have only added to these burdens by making it difficult for people with past cannabis offenses to expunge their criminal records and barring them from obtaining the retail licenses needed to operate a cannabis business legally. For many longstanding members of the cannabis community, it feels like legalization has left them behind.
The US prison population has grown by more than 500 percent since 1980 (Sentencing Project 2023). This increased incarceration rate did not come about as a response to a rise in crime, but instead as a concerted effort to step up enforcement, particularly for low-level drug offenses (Garland 1990, 20; Gottschalk 2006, 23–26). Cannabis prohibition played a key role in creating this system of mass incarceration. Cannabis offenses accounted for 43 percent of all drug arrests in 2018, far more than for any other substance (ACLU 2020, 21). Though these arrests have declined of late, nearly 700,000 Americans are still arrested for cannabis offenses each year, more than the number of arrests for all violent crimes combined (ACLU 2020, 21). The brunt of this enforcement has been aimed at communities of color, especially Black people, who despite equal rates of cannabis use, are still nearly four times more likely to be arrested than whites for a cannabis offense (ACLU 2020, 29).3 Indeed, the gap between Black and white arrest rates for cannabis offenses has persisted, even increasing in some states post-legalization.4
Nevertheless, there are signs that the American public is beginning to lose its appetite for mass incarceration. Several localities have recently elected “progressive prosecutors,” determined to help dismantle the system from the inside (Davis 2019). Many of the activists and elected officials who helped legalize cannabis have been motivated, at least in part, by a desire to reduce the incarceration rate. Not surprisingly, legalizing cannabis typically does lower the number of cannabis arrests in that state, often quite dramatically.5 But the government has a long history of co-opting well-intentioned criminal justice reforms, using them instead to perpetuate carceral power, and legitimate the continuation of past abuses (Gottschalk 2006, 238). As we shall see, legalizing cannabis does not necessarily mean reducing the state’s ability to control those who buy, sell, or use the drug. Instead of giving up its power over cannabis, legalization has merely allowed government officials to exchange one mechanism of controlling this substance for another, more subtle, and much more effective one.
In his highly influential book Discipline and Punish, Michelle Foucault explains how power is wielded by modern nation-states. He traces the development of the state’s ability to discipline its citizenry from the limited reach of the gallows, to the work gang, to the prison, to the omnipresent gaze of the modern surveillance state. At each step in its evolution the state adopts what are seemingly more humane ways of punishing, disciplining, or controlling those whom it perceives to be deviant. But these changes were not made for humanitarian reasons alone. They also allow the state to obtain new “machineries of power,” which it uses to more effectively control its citizenry. In the final chapter of his book, “The Carceral,” Foucault describes how state power becomes near total as it moves beyond the boundaries of the prison walls and spills into all areas of social life. For Foucault, all aspects of the modern state, including schools, hospitals, and workplaces, become part of the “carceral archipelago,” sites of disciplinary power, where pupils are manipulated by a subtle system of “micro power” into becoming “docile bodies” (Foucault 1978, 297). These more subtle mechanisms of control work so effectively that the populace often does not even recognize that it is being controlled, making any efforts to challenge the power of the modern state much more difficult. In the final stages of this process, power is devolved to private corporations and other nonstate actors, making it even harder to identify and counteract (Gilliom and Monahan 2012).
One of the most common ways in which people are controlled in the United States today is through our capitalist economic system. A growing body of criminologists, drawing on Marxist theory, have argued that the criminal justice system should primarily be understood as a mechanism used to control the poor and protect the capitalist economic order (Garland 1990, 83–130). Loïc Wacquant, for example, provocatively argues that “prison operates as a judicial garbage disposal into which the human refuse of the market society are thrown” (2009, xxii). Sometimes the state goes about this in obvious ways, by incarcerating poor people of color and placing them under formal control. Other times the state’s influence is less obvious. When customers engage in routine financial transactions, for example, they may feel like they are doing so voluntarily, but the reality is that their actions are all backed by the coercive power of the state (Hale 1923). People do not passively follow the state’s ever-changing rules governing cannabis because they think that it is the right thing to do—they do it because they know that if they do not do so, they may end up on the receiving end of state sanctioned violence (Cover 1986).
The shift toward policing cannabis through the “free” market poses a major problem for those who seek to use cannabis legalization as a mechanism for racial uplift. Capitalism has long been used as a tool for perpetuating white supremacy in the United States. As law professor Angela Harris tells us, “Racial subjugation is not a special application of capitalist processes, but rather central to how capitalism operates” (2021, vii). Racism is baked into our capitalist economic system, which relies on the existence of a permanent underclass of labor to be exploited. In the United States, as in much of the western world, that underclass has always been disproportionately comprised of racial and ethnic minorities (Jenkins and Leroy 2021).
There is perhaps no better historical example of the pernicious role of racial capitalism in America than in the failures of Reconstruction. In his exhaustive history Black Reconstruction in America, W. E. B. Du Bois lays the blame for the inability to build a more just and equitable society after the Civil War at the feet of America’s capitalist economic system. He writes, “The slave went free; stood a brief moment in the sun; then moved back again toward slavery. . . . The resulting color caste founded and retained by capitalism was adopted, forwarded and approved by white labor, and resulted in the subordination of colored labor to white profits the world over” (1935, 30). In many ways, the economic potential of cannabis legalization mirrors the promises that the Freedman’s Bureau presented to newly freed Black slaves more than a century ago. If we are not careful, we risk repeating the same mistakes.
Legal scholarship could benefit immensely from taking the ideas of racial capitalism more seriously. Though critical race theorists have long argued that law is a tool of white supremacy (Bell 1992), these insights have not always been applied to our economic system. Indeed, the subfield of law and economics is populated by scholarship that either ignores race completely or reduces it to an inefficiency that will surely be resolved by market forces alone (see, for example, Becker 1957; Epstein 1992). This has resulted in a legal system that is woefully unprepared to deal with the racial inequities at the heart of our capitalist economic order. Harris points out that:
Antidiscrimination law, the primary place where race shows up in legal practice, provides individuals with tools with which to contest their exclusion from . . . institutions of the market and state—when exclusion can be proven to have been motivated by racial difference. But antidiscrimination law assumes that these institutions are otherwise race-blind and race free. Moreover, the remedies available under antidiscrimination law are designed to forestall collective economic redistribution as a possibility. (2021, ix)
This book remedies this oversight, by showing that our capitalist economic system functions not as a collection of neutral rules and regulations, where racism is an undesirable outcome, but as an inherently racist system that willfully perpetuates racial inequities.
The fact that the retail cannabis market perpetuates status quo power structures in this way suggests that the work of cannabis reform activists will not stop with legalization. From their perspective cannabis legalization is merely one step in an ongoing multigenerational struggle for a more humane and socially responsible approach to cannabis. Yet the media, and even many members of the cannabis community, have often treated legalization as the ultimate victory for the cannabis reform movement. This tendency to focus myopically on major breakthroughs casts social movement victories as discrete events, disconnected from the larger historical context under which they emerged, and obscures the underlying power structures that they are attempting to combat (Dudas, Goldberg-Hiller, and McCann 2015, 371).
This flawed narrative is not unique to cannabis, it is a common lens through which social movements are viewed. Perhaps the best example of this is the American civil rights movement, a story that is conventionally told as beginning in 1954 with Brown v. Board of Education, and culminating in 1964 and 1965 with the passage of the Civil Rights and Voting Rights acts (Eagles 2000; Mattson 2002). This narrative strips the civil rights movement of its necessary context. Most troublingly, it ignores the backlash that these victories engendered, artificially constructing a progressive image of the United States as a country inexorably marching toward greater racial equality.
Such a telling is not necessarily wrong, but it is incomplete. As historian Jacquelyn Dowd Hall notes, “remembrance is always a form of forgetting” (2005, 1233). Remembering social movements in this way forgets a lot. It obscures the way entrenched power structures remain even after major victories, and makes the job of activists seeking to mobilize against these counter-movements even harder. It also lionizes the people responsible for these breakthroughs, ignoring the fact that their work builds on the efforts of generations of activists who came before them (McCann 2020). These ahistorical conceptions of social movement victories can be weaponized by opponents, who often point to major breakthroughs as evidence that the problems of the past have been solved, and construct efforts to build on these gains as illegitimate attempts to gain special rights or privileges (Crenshaw 1988; Hall 2005).
In this book I take these concerns seriously, conceptualizing cannabis reform as a multigenerational project that began long before cannabis legalization was a viable idea and will continue long after it has been achieved. I situate my discussion of successful campaigns for cannabis legalization in the middle of this book (chapter 2), flanked by chapters exploring the historical development of cannabis reform (chapter 1), and investigating how reform efforts persist after cannabis legalization (chapters 3 and 4). This more complete telling helps illuminate the ways in which legalization poses new challenges for social justice–oriented activists interested in cannabis reform.
This work is theoretically and methodologically informed by interpretive social science. Scholarship that is oriented by an interpretive epistemology begins with the assumption that reality is socially constructed, and that the meaning we give to the world around us is necessarily mediated by cultural and linguistic understandings and normative assumptions (McCann 1996, 463; Hawkesworth 2006, 31; Yanow 2006, 75). Thus, the language that we use to talk about something like cannabis does not merely describe our reality; it actually constitutes it. Interpretive methods are ideally suited for exploring the cultural questions that are at the heart of the inquiry conducted in this book. I use an interpretive approach to help draw attention to how the ways in which we talk about cannabis shape who gets viewed as a responsible, rights-bearing member of the cannabis community, and who does not. These ideas help shape the formal legal policies that govern cannabis in the United States, as well as the informal ways in which these legal policies are enforced and implemented.
Interpretive social science operates under the assumption that the process by which people make meaning of their world is complex, dynamic, mutually constituted, and hotly contested (McCann 1996, 463). As such, interpretive scholarship rejects the positivist assumption that an objective researcher can isolate individual variables in order to make definitive causal statements (Hawkesworth 2006, 31; Yanow 2006, 75). Instead, interpretive scholars must explore how social, legal, institutional, and cultural norms work together to shape our understanding of the world (Rabinow and Sullivan 1988, 14). As such, I am less interested in making definitive claims of causality in this book, and more concerned with drawing connections between the evolving culture of the cannabis community and the direction and development of cannabis reform.
The empirical core of this book is comprised of data that I collected during a series of forty-six in-depth interviews with cannabis activists and industry workers from 2019 to 2021. This research was carried out with the approval of my university’s Institutional Review Board. To protect the privacy of my research subjects I have taken steps to preserve their anonymity by giving them pseudonyms and omitting identifying information. This gives my interviewees the ability to speak freely about controversial subjects without fear of harming existing relationships with other activists, elected officials, or industry stakeholders. It also protects them from legal liability, which is particularly important because many of these conversations involved the discussion of the use or sale of an illicit substance, in violation of federal and state laws.
I recruited my research subjects by soliciting pro-cannabis activist organizations such as the National Organization for the Reform of Marijuana Laws (NORML), Marijuana Policy Project (MPP), Drug Policy Alliance (DPA), and Americans for Safe Access (ASA). All forty-six of my interviewees self-identified as cannabis activists with the biggest groups coming from NORML (21) and ASA (10).6 In addition to being activists, fifteen of my interviewees were working in the cannabis industry at the time of our interview (11 in the legal adult-use industry, and 4 in the illicit cannabis industry).
Effort was made to ensure a diverse sample.7 Twenty-eight of my interviewees were men and eighteen women. Thirty-six of my interviewees identified as white and ten identified as nonwhite.8 Regional diversity was taken into account as well, with interviewees from thirteen different US states included in the sample.9 Most of my interviewees were based in states that had already legalized cannabis at the time of our interview, the largest numbers coming from Washington and California. Finally, as Erin Mayo-Adams correctly notes, most social-movement scholarship tends to focus on a small cadre of highly visible and well-resourced national activist organizations (2020, 5). In order to avoid this, I made an effort to recruit a mix of local grassroots-oriented volunteers and professional paid activists, working for national cannabis organizations. Thirty of the people I interviewed for this study identified as local activists, and sixteen worked for national cannabis organizations. Many of these local activists were affiliated with one of NORML’s local chapters, which operate autonomously from the national organization.
These interviews were conducted using a semi-structured narrative or dialogic technique (Mishler 1986). This method encourages the interviewer to put the interviewee at ease by using an informal or spontaneous style and probing them with unscripted follow-up questions designed to get them to reflect critically on the role that they played in historic events. The goal of such an approach is to generate “a lengthy, dynamic, open-ended interactive dialogue in which interviewer and interviewee participate more equally in the common construction of meaning” (McCann 1994, 19). The purpose of these interviews was to better understand how these activists experienced cannabis legalization and how they understood its impact on members of the cannabis community. I was particularly concerned with how legalization has shaped the legal consciousness of these populations and how it has impacted continued efforts to mobilize for cannabis reform.
This interview data was supplemented with textual analysis of relevant source material. I utilized a variety of primary and secondary source documents for this project, including: campaign and advertising materials produced by cannabis activist organizations, stories about cannabis published in both mainstream and alternative media outlets, the biographies of notable cannabis reform activist, the works of counterculture authors like Norman Mailer and Hunter S. Thompson, and the music of rockstars such as Jimi Hendrix and Bob Marley. Whenever possible, I tried to use quotes directly from activists and other important figures themselves, typically sourcing them from biographies or other archival material, much of which is available online. I made substantial use of High Times magazine’s online archives at times during this project, which contain more than 500 issues published from 1974 to 2018. High Times magazine is perhaps the best-known, and most widely read chronicler of the cannabis community, with more than 236,000 print subscribers and over 20 million unique online viewers a month (Murrieta 2017). The magazine is not without its critics (Schreckinger 2020), but examining it does provide a window into the evolving cultural identity of cannabis that cannot be found elsewhere.
This book consists of six chapters, including this introduction. Chapter 1 provides a historical overview of cannabis prohibition in the United States. This analysis proceeds chronologically with a focus on three important turning points that have shaped the project of cannabis reform—the passage of the Marihuana Tax Act of 1937, the launching of the War on Drugs, and the rise of the medical cannabis movement. I show how each of these events shaped the legal culture around cannabis, the goals and tactics of the cannabis reform movement, and the development of the US cannabis industry. My analysis here traces the evolving cultural understandings of cannabis in the United States and explores how changing ideas about who participates in this activity, and what values those populations espouse, have fueled cannabis prohibition. I also examine how this changing legal culture impacts the legal consciousness of those in the cannabis community, specifically, how participating in an illegal activity which the state has deemed “deviant” shapes how those in the cannabis community view themselves in relation to the law, and how these self-conceptions evolve as the legal treatment of cannabis changes.
In chapter 2 I shift my attention to the moment of cannabis legalization. I begin by examining how the changing culture of the cannabis community laid the groundwork for cannabis legalization. I show that early on cannabis use was synonymous with rebellion and an outlaw identity. Many activists who came from this community championed cannabis reform as a mechanism for progressive social change. The rise of a successful retail cannabis industry, however, brought more people into the cannabis space. Many of these people, particularly those coming from the business community, did not share these radical political beliefs. Indeed, many came to see the more radical elements of the cannabis community as counterproductive to their goals. As part of their efforts to build more popular support for cannabis reform, they engaged in what I term “neoliberal respectability politics,” policing this community in order to hide those elements that did not conform to this ethos, while elevating the voices of those that did.
This influx of business interests into the cannabis community had an enormous impact on efforts to legalize cannabis. Corporate donors were able to use their considerable financial resources to shape cannabis legalization campaigns. They often wrote ballot-measure proposals that constructed regulatory schemes for legalizing cannabis that favored corporate interests and sidelined many longstanding cannabis activists, who they perceived as hostile to their agenda. This results in a regulatory structure for legal cannabis that primarily benefits those in the business community and fails to address many of the concerns of more social justice–oriented cannabis activists.
In chapter 3 I examine the regulatory framework that has grown up around the legal cannabis industry and explore its implications. On the surface, legalizing cannabis would seem to represent a reduction in state power. Yet a closer look at how the cannabis industry is regulated reveals that, instead of giving up its power over cannabis, the state has merely exchanged one mechanism of controlling this industry for another, more subtle, and much more effective one. I show how the state has used its power to regulate and tax cannabis to consolidate its control over the drug, bringing a marketplace that it has been unable to control through prohibition alone to heel through legalization. Legal cannabis states have used their newfound power to regulate and tax cannabis to create a legal cannabis industry that operates according to their terms. Those who wish to participate in the legal cannabis space must acquire all the proper licenses, pay the required fees, and comply with a maze of bureaucratic rules and regulations. These act as barriers to entry, preventing many people from being able to participate in the legal cannabis industry. As a result, the same predominantly Black and brown communities that were most adversely impacted by the War on Drugs are also the ones most likely to find themselves shut out of the legal cannabis industry.
Those lucky enough to obtain a cannabis business license must figure out how to navigate an extremely difficult business environment. Most cannabis business owners struggle to remain profitable and many fail. These difficulties are not felt by everyone equally. Those with prior business experience and more access to capital have an easier time weathering such a challenging business environment. Smaller, more independent operators, however, who often have less legitimate business experience and far fewer resources, struggle to survive. Minority-owned cannabis businesses are particularly vulnerable to these challenges.
Those who are unable to enter the legal cannabis space are forced to either leave the cannabis trade entirely, or continue operating in the illicit marketplace after legalization, even though doing so risks arrest. Though cannabis arrests have declined since legalization, they have not gone away. Thousands of people are still being arrested each year for cannabis offenses in legal cannabis states. This shows that legalizing cannabis should be understood less as a transition away from the policies of mass incarceration, and more as an attempt to redirect how police power is used, in order to better serve the state’s interest in controlling the cannabis trade.
In chapter 4 I turn my attention to the state of the cannabis reform movement after legalization. This analysis helps illuminate some of the challenges facing activists who continue to fight for social change in the aftermath of a major victory. I document how cannabis activists working in legal cannabis states navigate the inevitable post-legalization decline, as they struggle to raise capital, build solidarity, and mobilize supporters without a highly salient cause like legalization to rally behind.
Cannabis legalization also changes the nature of the debate over cannabis from a relatively simple conflict between social justice–oriented cannabis activists on one side, and law enforcement officials and concerned parent groups on the other, into a complicated dispute involving a host of different actors. It creates new stakeholders, such as corporations, security companies, laboratory technicians, and commercial property owners, who have very different ideas about what cannabis reform should look like. It also has the effect of shifting the terrain of this debate from one-off political campaigns, which lend themselves well to grassroots organizing, to the constant grind of legislative rule-making, which does not. This further complicates the efforts of activists, requiring them to adjust their tactics and learn new strategies.
These challenges suggest that reforming the laws and regulations governing legal cannabis may be even harder than legalizing cannabis was in the first place. Shifting the debate over cannabis reform to a regulatory environment places activists at a disadvantage relative to deep-pocketed business interests, who use their considerable resources to hire lobbyists and influence the legislative process. This highlights the importance of drafting robust legalization bills, which put progressive values at the forefront, rather than accepting flawed cannabis legislation, in the hopes of reforming it later.
In the final chapter of this book, I provide an overview of the central insights of this research, then turn my attention to some lingering questions raised by this inquiry. Many of the longtime cannabis activists that I interviewed for this project have described legalization as akin to a “hostile takeover” of the cannabis community by the corporate sector. But a focus on the influence of corporate interests only tells part of the story. Here, I complicate this narrative somewhat by taking a deeper look at the values of the “original” cannabis community that many feel is being replaced—1960s counterculture. At least part of the reason that corporate cannabis has been so successful is that this community has never really been as progressive, or as hostile to corporate America as the stereotypical “hippie” image might lead us to believe. This is particularly true for race. Cannabis has always been framed in racially problematic ways, not just by the forces of prohibition, but also by the cannabis community itself.
Perhaps no one better demonstrated the difficulties of navigating race, capitalism, and cannabis in modern America than “Bob” Marley. Initially, the American media portrayed Marley in explicitly racist terms, often depicting him as an ignorant rustic, a stoned-out street tough, a sex-crazed maniac, or a militant revolutionary. This highly racialized image helped endear Marley to the American counterculture precisely because it allowed them to act out long-standing racial fantasies. As a result, Marley developed a dedicated following with the primarily white rock music audience in the United States, but he never really broke through with African American listeners. Following his death from cancer in 1981, a concerted effort was made to revitalize Marley’s public image and broaden his appeal to a more mainstream audience. Beginning with the issuing of Legend in 1984, Marley was increasingly portrayed as a unifying figure of peace and racial harmony. This resulted in an extremely lucrative period of his career, with album sales far in excess of anything Marley was able to achieve while alive. But this sanitized portrayal was once again more concerned with servicing the evolving post-racial fantasies of Marley’s still primarily white American fan base than authentically representing the anticolonial project of Black liberation that was so central to his music.
I offer Marley as a cautionary tale for those who seek to use cannabis to pursue progressive social change in the United States. Artists like Marley show the limits of working to advance political causes within the corporate space, particularly when those causes put you at odds with the economic interests of wealthy white people. Marley’s experience suggests that Black people can succeed in this environment, but only by rendering their Blackness less visible, and only if they are willing to abandon the mission of racial egalitarianism for platitudes about diversity and racial harmony. This virtually guarantees that our efforts to improve racial equity in cannabis will never advance beyond the elevation of a few token representatives of the Black community, so long as it remains entrenched in the American capitalist system. In light of this history, the racially exploitative manner in which cannabis legalization has played out in the United States should not be viewed as aberrational. Instead, it should be seen as a continuation of the complicated racial dynamics that have always been central to the American counterculture and the mostly white New Left activists who identified with it.
1. Law and society scholars have, for example, found law in popular films like The Godfather (Papke 1996), television crime dramas (Rapping 2003), late night television jokes (Haltom and McCann 2004), images of pregnant celebrities (Cramer 2016), and even the spy novels of William F. Buckley Jr. (Dudas 2017, 40–66).
2. Neoliberalism is an economic system that seeks to promote growth by encouraging the development of free markets and discouraging government regulation of business. In this book, however, I am less concerned with neoliberalism as formal economic policy, and more interested in how these ideas are reinforced through powerful political, moral, and cultural logics—what Wendy Brown refers to as “neoliberal political rationality” (2003). As Stephanie Mudge has argued, the basic tenants of neoliberalism, which hold that unfettered economic markets are the best way to distribute scarce resources and maintain a free society, have become so ingrained in Western culture since at least the 1980s, that they have acquired quasi-religious significance (2008). In this way neoliberalism’s impact extends beyond government policy, shaping individual behavior by creating a society where materialism, conspicuous consumption, and the maximization of profits are seen as the hallmarks of good citizenship.
3. Similar arrest data for Latinos is unavailable because the FBI Uniform Crime Report does not disaggregate based on ethnicity. This could also have the effect of artificially lowering the perceived disparity in black/white arrest rates.
4. Colorado, which had the smallest racial disparity in cannabis arrests, still arrested Black people for cannabis possession at a rate 1.5 times higher than whites. Illinois had the highest disparity in arrests among legal states during this time period, arresting Black people for cannabis possession at a rate 7.5 times higher than whites, an increase of 118 percent since cannabis was legalized in the state (ACLU 2020, 3233).
5. States that legalize cannabis have tended to see precipitous declines in cannabis arrest rates. One study found that states that legalized cannabis between 2010 and 2018 saw their cannabis arrest rates drop from 173.7 per 100,000 to 24.5 per 100,000 (ACLU 2020, 25).
6. Most of my interviewees reported being affiliated with multiple cannabis activist organizations. Thirteen identified as members of NORML’s national organization, fifteen with various local chapters of NORML, two with DPA, two with MPP, ten with ASA, five with Students for Sensible Drug Policy (SSDP), three with Patients out of Time (POT), three with Law Enforcement Against Prohibition (LEAP), four with the National Cannabis Industry Association (NCIA), five with the Cannabis Alliance, and twenty-six were affiliated with “other” local cannabis organizations.
7. In order to ensure a diverse pool of interviewees, I solicited interviewees from a number of pro-cannabis organizations that focus specifically on communities of color, such as the Minority Cannabis Business Association, the Black Cannabis Commission, Cannabis Equity Illinois, and Minorities for Medical Marijuana.
8. Six identified as Black, one as Latino, two as Asian American or Pacific Islander, and one as Native American.
9. Thirteen lived in Washington at the time of our interview, eight in California, three in Illinois, two each from Nevada, Michigan, and Florida, one each from Oregon, Colorado, Minnesota, Ohio, Massachusetts, New York, and Washington, DC. Ten of my interviewees lived in Washington, DC, and participated mostly in cannabis activism at the federal level. Two of my interviewees were Canadian cannabis activists.
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