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    Marijuana Laws And 14th Amendment
    By Ed Chen | January 15th 2011 01:24 PM | 10 comments | Print | E-mail | Track Comments
    About Ed

    Ed is an NGO representative to the United Nations for the Lawyer's Committee on Nuclear Policy. He is a Columbia College graduate (Cum Laude; Departmental...

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    The Fourteenth Amendment of the United States constitution was passed after the civil war to provide equal protection to freed slaves under the law and to protect them from discriminatory behavior by the government. However, since then, the equal protection clause has been extended to prevent discriminatory action by the government against other races, as well as gender discrimination. One principle stated by the modern court regarding this amendment has been "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose...governmental action is not unconstitutional soly because it has a disproportional impact." Read only this far, marijuana laws would not be considered unconstitutional despite the fact that Black men are admitted to state prisons on drug convictions at rates 13.4 times higher than white men, and in 2006, 44.2% of drug inmates were black, 27.1% white and 20% Hispanic, despite the statistic that In 2008, illicit drug use by blacks were 10.1%, whites were 8.5%, and 6.2% for Hispanics. However "discriminatory purpose May be shown by data regarding administration of a law, not merely by a disadvantaging racial classification on the face of the law. Moreover, a law neutral in language and application may have been enacted with a purpose or motive to discriminate." If this judicial reasoning and precedents are applied to the current application of marijuana laws it becomes abundantly apparent that the law as it stands should be unconstitutional under the equal protection clause.

     In Yick Wo vs. Hopkins, 118 U.S. 356 (1886) a San Francisco ordinance "prohibited operating a laundry without the consent of the Board of supervisors except in a brick or stone building" unless the board granted an operating permit -- a seemingly fair and reasonable law. However, the board granted 200 permits for operation in wooden buildings to all but 1 non Chinese applicants, but none to 200 Chinese applicants. Yick Wo was imprisoned because of his violation of the ordinance. However the court found that there was discrimination in the administration of the law despite the apparently neutrality in the laws language. The use of empirical and statistical data was enough to show that there was purposeful discrimination based upon racial hostility, though motive arguments were not permitted, only empirical data, which is abundant in the case of the application of US marijuana laws. In addition to the statistical data provided in the first paragraph showing disproportional imprisonment of blacks and Latinos for marijuana violations, which constitutes the sort of empirical and data driven evidence accepted by the supreme court as proof of discriminatory purpose above and beyond simple and mere effect, the consequences of the application of marijuana laws also deny public services such as federal education loans, and opportunity to serve in military and civilians positions to black and Hispanics at a empirically obvious and statistically significant at a greater than 99% confidence level. When blacks and Hispanics are arrested and convicted on minor marijuana charges, they lose the ability to access federal student aid grants, as well as serve in positions in the government and military, without regard to the severity of usage or the ambiguity of the evidence regarding the mal-effects of marijuana on the use.

    The statistical evidence shows that the administration of marijuana laws in this country is patently discriminating despite the neutrality of laws as written. According to precedent established by the supreme court, this statistical evidence is sufficient to show that the purpose of these laws are discriminating in nature and are thus unconstitutional. Further evidence of the unconstitutionality of current marijuana laws as they stand are further illustrated by the effect on the self conception of those who are light to moderate marijuana users, which is similar to the effect of inferiority disproportionately imposed upon groups in these already racially disadvantaged groups; an implication of inferiority which led the supreme court to rule that segregated schools were also unconstitutional due to their similar invidious effects upon the affected groups of individuals. This inferiority imposition is created since these users as a class are deemed unfit to serve along side their peer, most of whom abuse a far more dangerous and toxic substance: alcohol. 

    This argument does not take into consideration the economic effects of the war on drugs and the pernicious effect it has in foreign countries because this would be a political matter that falls under the sphere of foreign affairs which may only be decided by congress. However, the cost on human life, is far greater than the benefits of deterrence of usage, which is statistically unfounded, of criminalization of marijuana. Again those arguments will not be considered here because of their speculative and subjective nature. Finally, this argument does not delve into the original intent of the marijuana laws first enacted in the early 20th century, despite the evidence that their original purpose was to discriminate against Mexican Americans, another argument that will be left unexplored due to their speculative nature which cannot be demonstrated with empirical evidence. However, based on the simple statistics provided in the first paragraph, which may be further supported by mass amounts of further numerical and empirical datasets, the marijuana statutes, they stand, are patently discriminatory.


    Excellent argument. The public knows our drug laws, particularly those concerning cannabis and hemp, are archaic, yet those who supposedly represent us in Congress won't even demand reclassification by the DEA. There is a disconnect between the people and the public servants that needs addressing. The healthy have no business dictating to the chronically and terminally ill what they are allowed to do to lessen their sufferring, nor do the petty tyrants have the right to persecute responsible adults who choose marijuana over alcohol as a safer alternative for relaxing and recreating. Declaring the law unconstitutional would rectify the discrimination of both groups, while coincidentally saving billions of law enforcement dollars.

    The healthy have no business dictating to the chronically and terminally ill what they are allowed to do to lessen their sufferring, nor do the petty tyrants have the right to persecute responsible adults who choose marijuana over alcohol as a safer alternative for relaxing and recreating

    In my experience,  "responsible" adults that smoke marijuana in urban environments, especially apartment buildings, affect everybody around them--they don't give a shit if their neighbors have to suffer their marijuana smoke.  Of course, this isn't a problem if the weed is taken in non-smoke form or they actually have a good ventilation system (which is unfortunately not the case usually).
    Gerhard Adam
    Samuel, in fairness, wouldn't the same apply to cigarette smoke?  In any case, the relevant point is that there is a serious problem when such drug laws impact individuals that could benefit due to illness, simply because of a moralistic view of "getting high".

    The argument becomes even more absurd when we consider how this has been stretched to include hemp and its products.
    Mundus vult decipi
    Yes, the same does apply to cigarette smoke.  I specifically avoid both tobacco and marijuana smoke because I can't stand it, let the alone health risks.  I live in a state where marijuana is decriminalized.  And my biggest problem right now with apartments is keeping other peoples disgusting smells out of my home.  And that is the main problem--the intense permeating smell. 

    This is not freedom if everybody is forced to inhale smoke and intense smells from a particular plant.

    This is a big issue that nobody is willing to discuss.  I'm not against making drugs or hemp (more) legal.  What I'm against is uncivilized behavior, such as forcing one's drug habits onto everybody around you at your whims.  I don't go to pot users's homes and ruin their air, why are they allowed to do that to me?
    Gerhard Adam
    Well, that's kind of the problem of living close to other people.  I suppose it's not right, but what's stopped industries from doing that to our air and water just because that was a byproduct of their business?  If someone gets an infestation of insects, it's not fair to the other tenants either, but that's the problem with such close proximity.

    I actually have almost the reverse problem where I live, in that we have people coming from urban areas into our more rural environment.  They like the quiet, but then want to complain that animals smell, and make noise, etc.  So this area doesn't have much patience with those urban dwellers that are looking to retire in the "country".
    Mundus vult decipi
    Oh pleeeaze
    "responsible" adults that smoke marijuana in urban environments, especially apartment buildings, affect everybody around
    Responsible people inhale marijuana in such a way that you would never notice it even if they are in the same darn room with you. Go over to your stupid neighbors and tell them to stop giving you cancer or you get the cops onto their asses (which would be fully justified), but please do not disturb such an important issue with off-topic comments.
    LindaSpeaks - Wonderful writing and info!
    Gerhard Adam - Great point about the country and how hard it is to get our surroundings "perfect."
    Samuel Kenyon - I hope to help your concerns by telling you that at least pot smoke is non-toxic, and there are beautiful-smelling air fresheners out there that can control the scent of your dwelling. I gag at the smell of B.O./car exhaust so I can relate.

    Very good article. Cannabis should never have been made illegal, but Thank God that we can get out from under this multi-billion dollar boondoggle/oppression by building pressure on our lawmakers until they fear the loss of their seat unless they start getting more responsible with our laws.

    This argument will never fly in court.

    To even be remotely analogous to the laundromat scenario, you'd have to examine [i]conviction[/i] rates for all person [i]arrested[/i]. If blacks get arrested at a higher rate, then any court will argue they commit the crime at a higher rate, and therefore the law is not discriminatory. You'd have to make your argument entirely based on the notion that, once arrested, the laws are used to more severely punish blacks.

    Consider the fact that blacks are incarcerated for genuinely violent crimes, such as battery, more frequently than are whites. Does this mean that laws against violent crimes are discriminatory? Or must we concede that, if for whatever reason (cultural, socioeconomic, etc) blacks commit these crimes more often, it is natural they shall be arrested for those crimes more often? Obviously no court will hold that simple laws against violent crimes are discriminatory.

    Furthermore, even then you'd have a hard time with your argument, because, if blacks, as members or a group which are more likely to commit violent crimes, are also more likely to commit drug crimes (remember how many people believe that someone who breaks one law is more likely to break any law), then it's only natural they should be arrested at higher rates.

    No, no court in a million years with even entertain this argument. Federal courts have had countless opportunities to mitigate or overturn marijuana laws, having to reject much better arguments than these (with a much firmer foundation in precedent) with their trademark brand of twisted logic and selective precedent.

    Now, with all that said, I agree with your argument. The laws are intentionally discriminatory, just as a law banning malt liquor would be, or a law banning wine might be discriminatory against other groups. There is nothing wrong with marijuana use, and its selection for prohibition was obviously a result of the plant's greater rates of use among black and hispanic communities.

    I'm just saying, if you pay much attention to the way the court plays with marijuana, you wouldn't have even bothered writing this article. No, marijuana reform will never come from the courts. They've had their chance and have affirmed their support of marijuana laws unambiguously. They still hate "hippies" and "blacks", by the appearance of things.

    Quick correction: I should have looked at statistics before I made any assumptions. Assault, and presumably battery, is one of the crimes for which whites are more frequently arrested than blacks (including murder). However, blacks are arrested for robbery more frequently than are whites, so the court would use this as the basis for an argument equivalent to the one I made. Simply replace "battery" with "robbery".

    Of course, it could be argued that all of these things might have alternate explanations. For example, many murders related to drugs are not investigated, and it's possible this reflects a significant proportion of murders committed by blacks. Similarly, rates of reporting assault likely lead to greater assault arrest rates in affluent communities, or in some cultural subgroups compared to others.

    I'm inclined to doubt that any group, racial or otherwise, is really more criminal than another group (unless by "group" you mean "violent gang"), and some sorts of crime are more common in some groups than others, but my point is that I don't expect a court to recognize this. I expect a court to choose the statistics which best fit their argument, an argument whose conclusion is predetermined: marijuana should remain illegal.

    Gerhard Adam
    There's a problem with the argument regarding arrests, since that metric isn't particularly relevant.  What you want is conviction rates, and incarceration.  In those cases, the consequences of the law are definitely discriminatory, since they depend almost exclusively on the economic status of the defendant.  Therefore the greater the number of defendants that are dependent on public defenders, then I would presume the higher the conviction rates becomes. 

    In short, in comes down to the quality of the legal defense one is capable of mounting, and without funds, one gets the cheapest, least capable amount.  Therefore if there is an economic difference between different social groups or races, then one would expect to see correspondingly skewed conviction rates.  In that sense the law isn't discriminatory, but its application certainly is.
    Mundus vult decipi