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Cannabis is now legal in 15 US states. Photo: Getty Images
Cannabis is now legal in 15 US states. Photo: Getty Images

SocietyJuly 19, 2017

The case for marijuana reparations

Cannabis is now legal in 15 US states. Photo: Getty Images
Cannabis is now legal in 15 US states. Photo: Getty Images

As the legalisation of cannabis edges closer to reality, some savvy entrepreneurs are getting ready to cash in. But what about the tens of thousands who’ve suffered mentally, physically and financially under our marijuana laws? Madeleine Holden argues the case for post-legalisation reparations.

Legal marijuana could be a reality in New Zealand very soon. Peter Dunne, the Associate Health Minister and Parliament’s longtime stick-in-the-mud on progressive social issues, has done an about-turn on cannabis, calling for it to be made legal and regulated. Meanwhile, public opinion is strongly in favour of legalisation. It seems to be a question of when, not if, New Zealand will take the plunge. When it does, the country will be joining a (commendable) international movement toward decriminalisation and legalisation already taking place in parts of Europe and the United States.

It’s worth considering, then, whether we need to take part in another smaller, but burgeoning international conversation: the debate about marijuana reparations. The basic argument goes like this: in societies where marijuana has been recently legalised, there is a resulting elephant-in-the-room style injustice, whereby some people are free to profit from the sale of marijuana – starting up swanky new weed dispensaries in what is already a $6.7 billion USD industry in North America alone – while others toil away in prison for the same basic behaviour. This is patently unfair, the argument goes, and so the latter should be compensated in some way.

What that compensation might feasibly look like is up for discussion. At a basic level, most proponents of marijuana reparations start by saying that anyone already incarcerated for the possession or sale of marijuana should be pardoned, released and have their convictions wiped upon its legalisation. Others go further, arguing that, in addition, financial compensation should be awarded, to go some way toward recognising the lasting negative impact of imprisonment on individuals, families and communities. Such compensation may take the form of lump sum payments or programmes that require participants in the marijuana industry to hire people from the communities most impacted by the War on Drugs. These discussions are largely taking place in a US context, but, with New Zealand primed for legalisation, we will need to grapple with them shortly too.

Marijuana reparations are not an easy sell to the public. As Matthew Fleischer put it in the LA Times, “It’s far easier to sell voters on the financial benefits of creating a lucrative new marijuana industry than it is to persuade them to open up the prison gates and set convicts free.” It’s fair to assume the same logic would apply in New Zealand. It would certainly be even more difficult to convince a sceptical public that prisoners deserve what would inevitably be framed as an undeserved financial handout.

Nevertheless, there is a tenable moral case for marijuana reparations. Despite how politically unrealistic it might presently be – and to expand the Overton window, if nothing else – more of us should be arguing in favour of the pardon, release, immediate clean-slating and financial compensation of every person convicted of a marijuana-related offence that is subsequently made legal by new legislation.

Advocates for marijuana reparations are likely to encounter two substantive counter-arguments. The first is that prisoners should not be released, let alone compensated, because they broke a law in clear force at the time of their behaviour. This argument has roots in the legal positivist tradition, and it’s worth taking seriously, because it contains some valid points: that people should generally be expected to act according to the laws in force at the time, for example, and that retrospectivity in the law is messy and should be avoided.

The positivist counter-argument can be answered on moral grounds: by referencing the principles of the natural law tradition and its subsequent schools of thought, by pointing out that retrospective punishment is usually what we’re trying to avoid (not the righting of past wrongs), and now, by appealing to an analogous overseas example (useful as an analogy – I’m not comparing marijuana use to homosexuality).

Germany recently announced that it will quash the convictions of 50,000 gay men convicted under a historical law – only fully repealed in 1994 – forbidding sex between men, and compensate each of them with a lump sum of €3000 (4,700 NZD). (A similar situation in New Zealand is currently brewing, although financial compensation has been ruled out at this stage.)

Proponents of marijuana reparations should have little trouble arguing that it is ethically unpalatable for some people to suffer under the effects of an old law (in prison, say, for selling weed) at the same time as people profit under its replacement (making millions per year, say, for selling weed). The injustice is particularly stark when you consider who, historically, has been targeted for imprisonment. Māori are grossly overrepresented in the prison system (Māori make up 15% of the general population and 50% of the prison population), and over-surveillance, discrimination and disparate sentencing play a big role in the application of marijuana laws specifically.

However, even with an iron-tight case for marijuana reparations, others will argue that it simply isn’t politically feasible, especially right now. The realpolitik, incrementalist, “okay, nice pipe dream, but remember you have to sell this idea to my very racist and very voting grandma” argument makes (depressing) sense, too: politicians can’t simply wave a wand to right wrongs. They need a mandate from the electorate, and, to put it simply, a lot of the electorate won’t like this idea, especially at first.

But, let’s talk about it. Let’s have it on the table. For those of us who are in favour of marijuana reparations, including the incrementalists among us, let’s at least consider the idea that we could do something creative and courageous, like Germany did, and that the New Zealand public could be persuaded to support it. Let’s expand the window of discourse and fight as eloquently and forcefully as we can for affected prisoners, who, in many very real ways, cannot fight for themselves.

And, for those who aren’t in favour, please do the rest of us the service of keeping an open mind.

Marijuana reparations might seem to be an unrealistic policy right now, but the idea taking hold only requires some political imagination, moral courage and persuasion. Just a short time ago, it would have been laughable to think that the German government would be compensating gay men for their “crimes”. Soon, most of us will be baffled that it took as long as 2017. Perhaps, at some point, we’ll also look back and wonder why it took New Zealand so long to apply the same logic to our drug reform policies. We need to at least talk about the elephant in the room, and now’s the time to start.

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