How Chicago’s progressive new weed law is fighting against the war on drugs
New legislation means that as many as 770,000 people could have cannabis convictions expunged from their criminal records. But after decades of discriminatory drug policy, is it enough? Rory McClenaghan investigates.
It’s lunchtime on New Year’s Day and the queue for the MOCA cannabis dispensary stretches three blocks down Milwaukee Avenue in Chicago’s Logan Square. It feels like half the city have thrown their hangovers aside to be part of history on day one of legal weed in Illinois. There are mothers and daughters, groups of middle-aged friends and the early-20s bottomless brunch crowd.
The dispensary looks impenetrable. The shop front is made up of breeze blocks and the kind of glass brick usually reserved for public toilets. Only the dayglo MOCA Modern Cannabis logos would stop you from thinking it’s a mechanic’s garage, or a stash house (which it kind of is). Two armed security guards stand in front of the grubby white door, letting in over-21s on a one-in-one-out basis. A third guard oversees the queue while a Chicago Police Department squad car looks on from across the street. The atmosphere is friendly but it’s clear that no shit will be taken.
For the first time in Illinois it’s legal to buy marijuana for recreational use and people are pretty happy about it. “This just makes everything so much easier and you don’t have to worry about getting in trouble or anything like that. It’s peace of mind,” says Alex, 27. “It’s just kind of an exciting thing to be a part of, being from Kansas where it’s still illegal,” adds 23-year-old Sarah.
The feeling of excitement outside the dispensary is a far cry from the Chicago stories that usually dominate the headlines. In 2016, 764 people were murdered on the streets of a city that has come to be known as Chiraq. President Trump used a rare visit to the Democrat stronghold last year to call it an “embarrassment” and “more dangerous than Afghanistan”.
Walking around most parts of Chicago you’d find it hard to believe this is one of the deadliest cities in America. That’s because it isn’t a city-wide problem, it’s a localised one. Of the murders that took place in 2016, a large concentration happened in just a handful of communities in the city’s West and South sides. Those communities are some of the most deprived in the city, with a chronic lack of services and opportunity. They are also almost entirely populated by black and Latinx people, segregated by decades of planning policy and kept where they are by a police department using the war on drugs as a means of control.
That control started back in the early 1970s with then president Richard Nixon declaring the start of a military and police campaign targeting the illegal drug trade. Heroin and marijuana were his main focus – chosen, some believe, in a bid to suppress his opponents in the black and anti-war communities respectively. Being “tough on drugs” has been a familiar campaign pledge ever since, one that was taken to extremes in the 1980s under Ronald Reagan who introduced mandatory minimum prison sentences for possession, in particular possession of crack cocaine, a drug which was ravaging inner city minority communities at the time. To get an idea of the impact of these policies, according to the Sentencing Project around 41,000 people were in prison for drug offences in 1980, by 2017 that number was over 450,000.
“The war on drugs was a national policy initiative that devastated many, many communities across this country, particularly black and low income communities,” says Alysia Tate, Director of Strategy and Organisational Development at Cabrini Green Legal Aid, a Chicago organisation which helps people with criminal records get back on their feet.
The statistics back up that view of a biased approach to the enforcement of drug laws. Numbers from the National Association for the Advancement of Colored People (NAACP) show that the imprisonment rate for African Americans on drug charges is six times higher than it is for white people, even though drug use is similar in both groups. And once a person is convicted the chance of getting a callback for a job drops by almost half.
Cook County State’s Attorney Kim Foxx wants to change that. The weed law she spearheaded gives anyone with a conviction for possession of less than 30g of cannabis (about an ounce) the chance to get that conviction expunged, or wiped from their record. That means people will no longer need to tick the prior convictions box when applying for jobs or trying to rent a flat.
It won’t take back the damage already done by years of policy which saw the incarceration of thousands of people for doing something which is now perfectly legal. But Illinois Governor JB Pritzker has called it, “the most equity-centric cannabis legalisation in the nation,” and Democratic representative for Peoria, Jehan Gordon-Booth, has claimed: “Black and brown people have been put at the centre of this policy in a way that no other state has ever done.”
So what set Illinois apart from the previous ten states to legalise recreational marijuana? It’s a combination of three things: giving people a fresh start by wiping minor cannabis offences from their records; investing tax revenue into communities unfairly impacted by the war on drugs; and giving people in those same communities the chance to benefit from this lucrative new business by owning their own dispensary.
Illinois isn’t the first state to implement social equity policies. California and Oregon both made it possible for people to have their criminal records expunged or sealed, but the onus was on the record holders to apply. In the end very few did, either because they didn’t know how to navigate the system or simply weren’t aware they were eligible. In Illinois the process is more straightforward, as Tate explains: “This law is extraordinary in that it’s the first automatic expungement process that we’ve seen and it’s being applied retroactively.” States Attorney Kim Foxx symbolically wiped the first 1,000 convictions from the record in December and Governor Pritzker swiftly followed with the pardon of another 11,000. Foxx’s department estimates as many as 770,000 people could stand to benefit.
Though according to Tate, social equity provisions in Illinois weren’t a box-ticking exercise, others aren’t so quick to praise the work that is being done. “We needed this a long time ago,” says heavyweight boxer, “Fast” Fres Oquendo. “Times have changed. People change and deserve a second chance. I’m a champion of second chances.” Raised in a tough housing project on Chicago’s West Side, Oquendo was caught handling drugs and guns on Chicago Housing Association property at the age of 19. That mistake cost him the chance to represent his native Puerto Rico at the Olympics. He got his boxing career back on track, challenging for world titles against the likes of Evander Holyfield, but when he began doing community work he realised how damaging his criminal record still was.
Oquendo was close to forming a partnership between his boxing academy and the Chicago Parks Department but his conviction made the deal impossible. “Because I was a felon they denied me the chance to serve my community. Over a hundred kids were let down,” he says. “This was something that I did a quarter of a century ago and it was like having a gorilla on my back. I never knew that because I had a class two felony it was a lifetime ban from the Chicago Parks District, the Chicago Police Department, Chicago Public Schools, Chicago Transit Authority … It was a lifetime ban on a lot of good jobs, high-paying public official jobs. I never knew that.”
The boxer is currently involved in the expungement process and is awaiting a pardon from Illinois Governor JB Pritzker. That’s a situation a lot of people could soon find themselves in as expungement is not quite as straightforward as it seems. Although State’s Attorney Foxx will be using her authority to push through the expungements in Cook County (which covers Chicago), in the other 101 counties of Illinois, expungements can still be rejected by state law enforcement.
For Alderman David Moore of the 17th Ward in Chicago’s South Side, that’s not good enough. “The fact that people have to go through a process and in the end the governor has to then make a decision as well, I think that’s an injustice to people,” says Moore. “Right now it’s legal to sell the same product and it’s legal to make money and no one goes to jail. It should have been across the board, anybody that got arrested, I don’t care if it was 300 pounds of marijuana, because somebody’s going to be making money on 300 pounds now, all of that should have been automatic expungement.”
Tate points out that, “expungement is still a complex process and most people have far more than minor cannabis violations on their record so we still think people need advocates and we’re committed to doing whatever we can to continue supporting as many people as possible to clear as much from their records as they can”.
Wiping convictions alone isn’t enough, people justifiably want more. They’re seeing money being made from something they went to jail for and are asking where their cut is. Up to now representation of people of colour within the cannabis industry has been almost non-existent. A 2017 poll by Marijuana Business Daily revealed that 81 per cent of marijuana business owners in the United States were white.
Illinois is trying to put that right by making it easier for social equity applicants to get a piece of the weed business. Bill Bogot, a partner at Fox Rothschild who counsels people on cannabis law, explains: “If you’ve had an arrest or a conviction on your record for certain marijuana related crimes then you’re considered a social equity applicant,” says Bogot. “Or if you live in certain neighbourhoods which are considered disproportionately impacted, areas which have had high marijuana crime rates and poverty because of the war on drugs. If you satisfy those criteria and apply for a licence you get 20 per cent extra bonus points.” Those points boost the chances of your application being accepted.
But this application process is only getting started. When weed went on sale on 1st January it wasn’t social equity owned dispensaries, but the city’s existing medical marijuana licence holders who took advantage of the lucrative opening period. In the first five days they sold $10.8 million worth of product and struggled to cope with the level of demand.
The lack of representation for people of colour nearly stopped the whole process in its tracks in December. With days to go before legalisation, Chicago’s Black Caucus, a group of aldermen working together to advance the interests of the city’s black community, pushed for a delay until July. Alderman Moore was one of those caucus members. “There were no African American, or any Latino, or any females that were owners in this industry,” says Moore. “Young black men got arrested for trying to feed their families or make money [by selling marijuana]. Now people are about to make money and feed their families [by selling marijuana] and these young black and Latino men and women are not a part of it. I don’t think that’s fair.”
Plans to make dispensary ownership more diverse have run into problems in other areas of the United States as well. In Oakland, California, established marijuana businesses have gamed the system by partnering with social equity applicants to make use of their licences. Against that background, are people feeling optimistic about the opportunities this law holds for them? Not yet, according to Tate, who says: “Right now many, many people are interested in how they can be part of this business and they are sceptical that there will be true pathways for people of colour to really financially benefit from it.”
One of those pathways is to apply for a licence to set up your own dispensary, which is no easy process. Ron Holmes helped establish The Majority-Minority Group, which helps social equity applicants applying for one of the 75 new dispensary licences the state plans to award by 1st May. Holmes explained to WTTW just how tough and costly that process can be. “The reality is we talk a lot about social equity but this is the hardest application in the country if you talk to any application writer,” he said. “Which means that the fees for consultants obviously go up. It’s a long application. Everything from security plans to quarantine plans to operating plans to environmental plans, Labor Peace Agreements.”
Even if you do get a licence, selling weed legally is not going to make you a fortune overnight, according to Bogot. “People see a lot of money in the industry, but remember, it’s still illegal under federal law, so one can never deduct most business expenses on their taxes,” he says. “If you’re paying employees wages you can’t deduct that, if you’re paying rent, you can’t deduct that, so except for the cost of goods sold your gross income is basically your net income you’ve got to pay taxes on. You could be losing money for a year but you’ve always got to pay taxes as though you’re making a profit.”
The fact that it’s illegal at a federal, or national, level means you can’t get a bank loan to set up a weed dispensary. So unless you’ve got a mountain of cash lying around you need to rely on private investment, often in the form of venture capitalists and private asset managers, who tend to be white, so the diversity problem continues.
Despite the issues around representation, legalisation went ahead as planned on 1st January, which was good news for Chicago Mayor Lori Lightfoot. Lightfoot inherited a whopping $838 million budget deficit when she came into office in 2019 and with that in mind, she’s gone in high when it comes to taxes. Depending on what and how much you buy, you can end up paying over 40 per cent in tariffs. Across the border in Michigan people pay just 16 per cent. As well as helping the city’s finances, a portion of that tax money is going into a grant programme to help social equity applicants, but a high tax rate can backfire.
“When new states come on board, one hopes that they get some lessons learned from other states.” says Bogot. “Sure you want to tax it, but you don’t want to tax it so much that you actually start helping the black market. In some regards by taxing less you can bring in more tax money. Take California, they’ve got a high tax rate but only 25 per cent of sales are coming from licenced dispensaries so they end up losing tax money in the end.”
Alderman Moore compares it to what’s happened in Chicago since tax on cigarettes went up. Enterprising black marketeers buy packs in bulk in neighbouring Indiana, where cigarette taxation is much lower, and sell them as individual cigarettes, or “loose squares” on the streets of Chicago. “It’s going to be cheaper for people in terms of smoking marijuana to get it from the street vendor,” says Moore. “I think it’s going to grow the underground market even more.”
His thoughts were echoed in a Chicago Reader interview with a local dealer. “People will be psyched about the dispensaries, but then I think people will call me back, because of the prices,” said the anonymous weed seller. There’s also the convenience. As of now you can only get weed delivered if you qualify for medical use and trekking to your nearest dispensary in Chicago’s Siberian winter seems less attractive than texting that guy you know.
More money in the dealer’s pocket means less to reinvest in the communities who have been so damaged by the war on drugs. And that’s not the only thing those communities have to worry about. Although attitudes on how and where you buy weed are changing, the approach to smoking it in public is as strict as ever. Getting caught smoking a joint or a vape pretty much anywhere that isn’t your home is just as illegal as it was before and that’s a situation which worries Alderman Moore.
“Consumption is a big issue right now,” he says. “People can only smoke in their house, so if people get excited about it being legalised and get caught smoking out there and have something on them, you can then end up incarcerated for that.”
While it’s true that marijuana arrests have gone down post legalisation in other states, the levels of inequality have not. In Colorado, between 2012 and 2014, arrests of white people for marijuana offences decreased by 51 per cent compared to just 33 per cent for Latinx people and 25 per cent for black people. When you consider the complicated history that Chicago’s people of colour have with the police there’s a worry those figures could be even more skewed.
USA Today reported that since 2010 the Chicago Police Department has spent more than $700 million in legal costs and settlements relating to lawsuits alleging police brutality. The shooting of black teenager Laquan McDonald by white police officer Jason Van Dyke in 2014 is just one of a number of high profile cases which have called the department’s conduct and attitude to race into question. Van Dyke was charged with second-degree murder and 16 counts of aggravated battery, one for each of the bullets he fired into the teenager’s body.
Trust in the police is in such short supply that an independent judge currently oversees the Chicago force to make sure reforms are being put into place. “Chicago police have a long history and reputation for discriminatory practices that they have said they are committed to changing, but that will not happen overnight,” says Tate. “I think the people from the communities that have faced the harshest consequences of our criminal justice system are sceptical about what this law will really mean for them and how they will benefit and they want to have hope and they want to have optimism but it’s not easy.”
What is clear is that the will is there. Chicago’s lawmakers may need weed cash for the city coffers, but they’ve also set their sights on disarming the war on drugs. They’ve identified the people most affected and they’re actively trying to help them. The legislation they’ve come up with may not be perfect, but the most radical elements came about thanks to pressure applied by a new generation of politicians who don’t look like the old ones. “One of the things that’s different now is that we have so much diversity in our political and community leadership in Chicago,” says Tate. “In particular we have black people at all levels of government, in strong positions of power and I know that is part of the reason why these provisions could get passed.”
No one is quite sure what will happen next. Could more drug convictions be quashed retroactively, giving people a real opportunity for a fresh start? Could that fresh start really come in marijuana businesses run by people of colour? Only time will tell. We’re talking about redressing the balance of a war on the vulnerable which started way back in 1971 and some would argue still hasn’t ended. That is a huge undertaking, but Tate sees legalisation as an opportunity for Illinois and Chicago in particular to take the initiative and write its own, positive headlines.
“I’m hopeful that we can really show the rest of the country what’s possible and how to be bold and take steps to really flip the script. You don’t change these kinds of things overnight and one law is not a panacea, but I hope it’s a very good start.” If the line outside the dispensary in Logan Square is anything to go by, the financial success of legalisation in Illinois seems secure. When it comes to effecting real societal change, we’ll just have to wait and see.