July 6th, 2016
People often speak of the once-in-a-lifetime opportunities that come with building a new, legal marijuana industry from scratch. The opportunities are real, but the premise forgets something: This industry isn’t being created from scratch.
Instead, it’s replacing two things that already existed: an illicit market from which many marginalized people have been able to make a living; and a system of prohibition that has ruined people’s lives by arresting and incarcerating them for doing the very thing people are now receiving licenses to do.
This distinction is important when we consider whether the new industry’s structure repairs that damage or, as in the case of felony exclusions, prolongs it.
Felony exclusions are the provisions in state marijuana laws that prevent people with certain criminal backgrounds from entering the marijuana industry. Originally, the justification for these restrictions was that they provided an additional measure of security for an unprecedented type of business. In deciding which individuals should be allowed to own or be employed by newly legal marijuana businesses, where they may have access to a business’s inventory, finances and most importantly, its security measures and knowledge of how to circumvent them, it was important for regulators to minimize any potential risk.
From a political viewpoint, the first campaigns legalizing medical and adult-use marijuana asked voters to take a leap and approve legal marijuana stores for the first time. For their sake, it was important to minimize both risk and the perception of risk.
But the time to tread lightly and carefully has passed.
Twenty-five states have now legalized medical marijuana, including the four states (plus Washington, DC) that have legalized marijuana use for all adults Dispensaries have been around for nearly 20 years, and many are considered to have revitalized their neighborhoods, by increasing security in their areas, occupying otherwise vacant real estate and building community relations with surrounding businesses. It’s time to shift the focus to building the best industry we can, and that requires doing away with felony-exclusion laws and adopting more inclusive hiring practices.
Imagine that you’re someone who has been growing or selling marijuana for years, long before it was legal to do so. In any other industry, demonstrated interest and experience would count in your favor when hunting for a job.
But in the legal marijuana industry, it depends on where you come from.
Due to well-documented disparities in enforcement, if you come from an over-policed community, you’re far more likely to have a drug conviction than someone from another community who engaged in exactly the same behavior. Is it fair to block the person with a conviction, but allow the person who was less likely to encounter police (and perhaps more able to afford a lawyer) to enter?
Worse, while people with convictions are blocked from the legitimate industry, the regulated market also causes them to lose income from growing or selling in the illicit market. Justice and equality demand that we don’t further punish people who have borne the brunt of the War on Drugs.
If we believe formerly incarcerated people should be given the chance to build a career, then owning a marijuana business should not be treated differently from any similar business. Except in cases that involve issues such as the protection of minors—not applicable here—I don’t believe in double-punishing someone who has served their time by withholding a business license.
Our goal should be to remedy the racial bias in the War on Drugs, not to perpetuate it. However, some would argue that there are legitimate policy reasons why a person’s criminal history would be relevant. Most people would agree, rightly or wrongly, that someone who committed certain violent crimes or embezzled from a former employer, for example, could fairly be barred from applying to own a marijuana business.
Let’s look at some aspects of the existing felony-exclusion laws and how they are structured. As we seek realistic, incremental, positive change, we can use these examples as a starting point to craft exclusion policies that only apply to crimes that might legitimately prevent a person from working in or owning a marijuana business, while minimizing discrimination.
The most egregious exclusions go beyond felonies. In Alaska, for example, you can’t apply for a retail license if you’ve been found guilty of even a misdemeanor involving a controlled substance within the preceding five years.
Instead of blanket exclusion, we could list specific, relevant crimes that disqualify someone from operating a marijuana establishment, or delegate that authority to a regulator. Or, as in Connecticut, details of felony offenses could be required to be submitted as part of a business application and reviewed on a case-by-case basis.
States like Hawaii not only block people convicted of a felony drug offense from applying for a medical marijuana dispensary license; they also block them from working at dispensaries in any capacity. Several other states, including New Hampshire, block anyone with a felony from even serving as a caregiver for patients.
A better, more tailored approach would be to craft minimal exclusions based on the type of position— from owner to employee to caregiver.
Many states only consider crimes relevant to exclusions if they occurred within a certain period of time immediately before the application date. For example, in Colorado, you can’t apply for a medical dispensary license if you have an existing controlled-substance felony conviction. However if you’re filing an application for a regular retail establishment, such a conviction won’t be a barrier if 10 years have passed since the conviction.
These time periods are important to the spirit of rehabilitation and should be set to the minimum possible length.
Exceptions for Marijuana
It is fundamentally unfair to continue to punish someone for having done what is now legal. Therefore, if we must include a felony exclusion, it should carve out an exception for marijuana-related offenses. In the initiative written by the Campaign to Regulate Marijuana Like Alcohol in Massachusetts, for example which is set to be on the November ballot there, anyone convicted of a felony is barred from receiving a retail license. However, this does not apply to marijuana or certain drug possession “offenses.” (That exception does not apply if distribution to a minor was involved.)
It can be overwhelming to navigate marijuana advocacy and business development while considering the needs of so many stakeholders, but this is one area we should all be able to agree on. Excluding people for marijuana convictions has no moral basis and no business basis, and further exclusions based on past crimes should be as narrow as possible.
Shaleen Title is a co-founding partner of THC Staffing Group and a longtime advocate to end the drug war. You can follow her on Twitter: @