Excerpted From: Garrett I. Halydier, We(ed) Hold These Truths to Be Self-evident: All Things Cannabis Are Inequitable, 19 University of Massachusetts Law Review 39 (Winter, 2024) (168 Footnotes) (Full Document)

GarrettIHalydierAt the inaugural meeting of Hawaii's cannabis legalization task force, every single piece of verbal and written testimony referenced “social equity” or advocated for Hawaii to implement a cannabis social equity program. Even individuals and organizations opposing cannabis legalization in Hawaii argued in support of cannabis social equity policies. Testifiers on both sides of the issue not only agreed about the importance of social equity policies but also that all previous states' attempts at implementing social equity programs had ended in “complete disaster.”

There was also general agreement about the sorts of policies that constitute cannabis social equity in adult-use cannabis regulations including programs that promote diverse ownership of cannabis licensed businesses (“industry equity”), reinvest in communities adversely affected by the War on Drugs (“community equity”), decriminalize sales and possession of cannabis and expunge cannabis conviction records (“criminal justice equity”), and address barriers to participation (“access equity”) in the cannabis industry.

By defining cannabis social equity as merely the implementation of such policies, the testifiers implied that only those policies can solve the War on Drugs' continuing impact on the inequities amongst different groups of cannabis users. Despite this common consensus about the sorts of harms to be redressed and the available menu of policy solutions, the testifiers also agreed that current implementations of those policies in social equity programs nationwide had yet to demonstrate any significant progress.

This debate in Hawaii does not exist in isolation, but rather serves as a microcosm of a larger national conversation that exhibits a similar near consensus on the ineffectiveness of social equity programs. For instance, the Minority Cannabis Business Association(“MCBA”) argues in its 2022 National Cannabis Equity Report “that not one [program] has resulted in an equitable cannabis industry on all four measures (industry, criminal justice, community, and access).” Their critique is chiefly concerned with implementation failures of cannabis social equity policies inside cannabis programs, rather than with the content of the legislation or administrative rules behind those policies. Each time a new state considers implementing an adult-use cannabis program, the same organizations appear, promoting the same cannabis social equity policies, with the promise that if these policies are implemented correctly this time, unlike in other states with the same policies, your state will be at the forefront of cannabis social equity--your state will be the first to get it right. No one challenges the merit of the policies themselves.

The cannabis social equity movement has certainly identified real, existing inequities resulting from the implementation of cannabis regulations to date, and many of its proposed policies can likely have positive impacts on those inequities. Even so, many of the policies for which there is the greatest consensus have at best reduced the overall magnitude of the harm without actually reducing the level of inequity. For example, in both states and countries where cannabis possession has been legalized, the total number of arrests for cannabis declined, but racial disparities in arrests remained the same or even increased by a nontrivial amount. Additionally, the policies that attract the most public and advocacy attention often require the greatest amount of administrative resources, which inherently limits the amount of inequity the policies can actually redress given the scale of the problem.

Part I of this paper expands the literature's understanding of the sheer scope of cannabis inequity through a multi-disciplinary recounting of not only the racial inequities but also the stigma, business, research, energy, sex and gender, hemp, and international inequities caused by the War on Drugs. This recounting serves as the foundation for Part II which investigates the structural reasons for the ongoing failure of cannabis social equity programs to address the consequences of the War on Drugs. This diagnosis must presage any attempt to build a robust social equity framework that can provide both a theoretical explanation for why current cannabis social equity programs remain unsuccessful and a foundation for exploring new solutions.

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The cannabis social equity movement has identified real, existing inequities resulting from the War on Drugs and has proposed policies with the potential to positively impact those inequities. However, many policies for which there is the greatest consensus demonstrate the greatest ineffectiveness. Additionally, the policies that attract the most public and advocacy attention often require the most administrative resources and are inherently limited in the amount of inequity they can redress, given the disparities in scale between the potential effects of the proposals and the very real inequities of the War on Drugs.

This paper contributes to the investigation and remediation of inequities resulting directly and indirectly from the United States War on Drugs by first bringing together research from a number of disciplines to uniquely enumerate the ongoing and enormous scale of the inequities that the War on Drugs continues to perpetuate, including racial, stigma, business, research, energy, sex and gender, hemp, and international inequities. And second, by providing a novel analysis of the current inadequacies of industry equity, social justice equity, community equity, and access equity policies to improve those inequities.

However, descriptive analysis of inequity and these failed solutions does not alone provide a way forward. This research was designed to serve as both a wake-up call and a plea for the industry to imagine something new. Applying the same policies to each new state program while hoping for more effective implementation is an exercise in futility. Multidisciplinary cooperation can investigate in more detail the empirical results of new policies and highlight the commonalities underlying the inequities of the War on Drugs as a starting place for multidimensional solutions.

The industry needs both further research and an honest self-evaluation by those supporting current cannabis equity policies. Social equity itself may not be the appropriate theory for approaching these inequities. The industry, advocates, and legislatures should return their attention to the robust, existing theories of social justice, restorative justice, and racial justice as the inspiration for new policy approaches.

Garrett I. Halydier, JD, MBA. Visiting Assistant Professor, Interim Director of Academic & Bar Success, and Deputy Director of the Institute of Asian-Pacific Business Law at the William S. Richardson School of Law at the University of Hawai'i at Mnoa.