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Commentary: The smell of marijuana and the stain of racism

Yanet Amanuel and Dana Vickers Shelley

ACLU of Maryland

The writers are public policy director and executive director, respectively, of the ACLU of Maryland.

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“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” — John Ehrlichman, Nixon’s former aide.

This intentional smear framing and more than 50 years of propaganda spewed by the media and politicians has not only allowed law enforcement to unfairly target and criminalize Black people, but it has also seeped deep into our subconscious: the idea that Black people are inherently criminal. Understanding this, we must be intentional about unlearning and rejecting this notion.

As of July 1, 2023, marijuana will be legal in Maryland. There is no reason why the odor of a legal substance should continue to be used as a tool by law enforcement to stop and search people, especially when police have disproportionately stopped and searched Black and Brown people. Allowing police to continue to do so not only promotes lazy policing but is rooted in the subconscious or conscious belief that Black people are inherently criminal.

The war on drugs has always really been a war on Black people. For decades, the alleged odor of marijuana has been used as an excuse to justify racial profiling and perform warrantless stops and searches. Associations between Black people and marijuana frame Black people as inherently criminal or bad. In contrast, white people and marijuana is framed as recreational or medicinal.

As Tony Weaver Jr. points out in Representations of African Americans in Non-linear Media Content: “Criminality has always been an element in misrepresentation of the Black community. Historically, criminality was one of the excuses for why slaves should be kept by their masters. Historic precedence for demonizing Blacks and calling them immoral, along with disproportionate coverage of news stories with Black perpetrators, creates a culture where Blacks are stereotyped as criminals regardless of wrongdoing.”

In Maryland, police are four times more likely to search Black drivers and their vehicles during traffic stops than white drivers. For incidents involving Black drivers, probable cause was used to justify 60% of searches. And we know that despite nearly identical rates of usage, Black people are criminalized for marijuana use at significantly higher rates in both arrests and sentencing. From 2018 to 2019, of those arrested for possession in Maryland, 75% were Black, according to a 2020 legislative data request. These disparities are directly related to the intentionally created popular belief that marijuana use among Black people is inherently connected to criminal activity.

Allowing police to do searches based solely on the alleged smell of marijuana also permits officers to needlessly escalate routine traffic enforcement. We have seen, time and again, how traffic stops have turned deadly for Black people around the country. Research has consistently found that Black and Brown drivers are more likely to be stopped, searched, subjected to force, and killed when unarmed.

A 2021 analysis by NPR found that of the 135 unarmed Black men and women shot by police since 2015, a quarter of those killings happened during traffic stops. Notably, in 2017, marijuana odor was used to justify killing Philando Castile during a traffic stop in front of his family. Here in Maryland in 2019, odor was used to justify escalation during a traffic stop in which a Prince George’s County Police Officer paralyzed Demonte Ward Blake, who later died. Recently, an entire family in Baltimore County was beaten by police due to the perceived smell of marijuana emanating from a vehicle.

The majority of traffic stops in Maryland are due to simple traffic violations that would generally result in a warning or ticket. The escalation of these stops under the pretext of marijuana odor is not only dangerous, but largely unnecessary considering the initial violation.

For too long, the legacy of the racist war on drugs has been used as an excuse by police to destroy lives and kill Black people. It’s time to take action to stop this injustice and pass Senate Bill 51/House Bill 1071, which will support us in changing the culture. The lives of our beloved children, parents, cousins, friends, and neighbors need our elected leaders to do something to finally end loopholes in the law that enable racial profiling.

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