How Exceptions to Legalization Keep the Drug War Alive

Cannabis prohibition made life worse for people of color, who were (and still are!) far more likely than whites to be arrested and incarcerated for cannabis, despite similar rates of use.

Legalization was supposed to change that, but as the Chicago Housing Authority is the latest to demonstrate, American society is very good at figuring out ways to ensure that legalization simply doesn’t apply to people of color.

Earlier this month, CHA mailed warning letters to the 63,000 households either living in state-owned public housing or receiving government subsidies to live on private property. Cannabis is legal for adults 21 and over in Illinois on Jan. 1, 2020, but not on CHA property and not in CHA-subsidized apartments, the agency announced.

“[D]rug-related criminal activity,” including “the use and/or possession of marijuana for medical or recreational purposes,” is an offense grave enough for the CHA to “TERMINATE all assistance” for the household in question, the letter read, according to the Chicago Sun-Times.

Chicago is the third-largest city in the United States. According to a 2003 estimate, almost 90% of CHA residents are black. Thus, in a very large city, for a significant portion of the population most negatively impacted by cannabis prohibition, marijuana legalization remains a crime — and one with penalties worse than running a stop light or even simple assault, as it could result in innocent people losing their housing and becoming homeless.

In its letter, CHA pinned responsibility for a tenant’s “guest” or person “under [their] control,” the effect of which is to create large carve-outs or “exceptions” for legalization that happen to apply to mostly people of color, the exact people done most wrong under prohibition.

The CHA’s reasoning for the draconian stance on weed is that since the CHA receives money from the federal Department of Housing and Urban Development, it must enforce and obey federal law. If it does not, and allows residents to engage in state-legal conduct, it risks losing federal funding.

This or a similar line of reasoning is the same excuse given by schools and hospitals across the country. In one particularly egregious example, an Arizona school used a positive drug test to expel a student from school. In her case, to yank her out of class and haul her before administrators “like a criminal,” as she told USA Today. And in some jurisdictions, law-enforcement has twisted the interpretation sufficiently to continue to effect arrests on campuses for state-legal cannabis.

In some states, like Connecticut, state law specifically forbids public or private universities from declining to participate in legalization. But as USA Today pointed out, a nursing student from Sacred Heart University, removed from school after a positive cannabis test despite being a legal medical-cannabis patient, those “protections” are often only validated following a costly and expensive lawsuit.

It is probably unfair to expect public-housing residents to have the resources to fight legalization exceptions in court. And it’s also unclear if the reasoning given by housing authorities, hospitals, or schools is valid. While it is well-known that many universities decline to study cannabis to not lose federal funding, there are not any known cases of an institution losing federal funding because it allowed a patient, or a resident, or anyone else to use cannabis in accordance with state law.

Certain classes of worker have also had to fight in courts to “enjoy” the rights afforded to them under medical or recreational cannabis laws. There are numerous examples in multiple states of employees terminated or qualified job candidates rejected for positions because of legal cannabis use. Many have had jobs restored or won settlements after filing suit, but the fact that a business felt comfortable firing an employee for using cannabis legally, off of job hours, is further evidence that legalization often comes with an unwritten “exceptions apply” disclaimer.

In these ways, individuals are forced to consider risking real penalties in order to pursue legal conduct. That is a chilling effect that serves to render the law moot, and one that is not felt equally throughout society. And as usual, those most likely to suffer for legal choices are the same people who suffered when it was illegal — or maybe just “less” illegal.

TELL US, has your housing situation ever been compromised due to your cannabis use?