The Register Citizen (Torrington, CT)
Lawsuit claims Conn. weed laws are racist
Attorney says laws were meant to ‘disenfranchise minorities,’ in a case that may be headed to high court
A lawsuit making its way toward the state Supreme Court claims that marijuana laws are racist, and therefore violate the U.S. Constitution.
If it’s unconstitutional, then William Hyde Bradley can’t be prosecuted on charges of selling weed, his lawyers claim, and if it’s unconstitutional neither can anyone else.
If the prohibition on marijuana was intended to “disenfranchise minorities” both from the electoral process and society overall, as attorney Aaron Romano claims, then he says it violates the 14th Amendment to the U.S. Constitution, specifically the equal protection clause.
At the center of the argument is Harry Anslinger, who in the 1930s ran the Federal Bureau of Narcotics, which became the Drug Enforcement Administration. He pushed successfully to make marijuana illegal both at the federal and state level.
Anslinger was, according to attorneys in the case, a racist.
“The law itself was designed with a racially discriminatory purpose and is unconstitutional in nature,” Romano said. “We have a dinosaur Jim Crow law that still exists in Connecticut. ... The inception of the law itself was from an illegal purpose. It’s root was illegal.”
That’s the argument Romano, also attorney for Connecticut’s chapter of NORML, made last month before the state appellate court.
Bradley was arrested in 2014 after posting videos of himself to YouTube with large quantities of marijuana. He said in the videos that his crop, which he called his “hope garden,” was intended to treat his own terminal cancer, and to help others.
“I hope I can save somebody’s life with this video,” he said.
He hopes to exonerate
his client, but the ultimate goal for Romano, he said, is for this legal question to cause an end Connecticut’s prohibition on marijuana, and for that to create precedence for other states to use.
A decision from the Appellate Court isn’t expected for another three months and, either way, the case could go up to the State Supreme Court if they choose to hear it. But the case could present a legal challenge to Connecticut’s ban on cannabis, perhaps forcing the legislature to rewrite the law.
Racist basis and implementation
Marijuana was legal until the Marijuana Tax Act of 1937. There were some restrictions earlier, but there was no overall prohibition until Anslinger.
“I wish I could show you what a small marijuana cigarette can do to one of our degenerate Spanishspeaking residents,” Anslinger told congressional leaders as they debated that law. “That's why our problem is so great. The greatest percentage of our population is composed of Spanishspeaking persons, most of who are low mentally, because of social and racial conditions.”
He collected reports of violent crimes he said were the result of marijuana use. He spoke against jazz musicians for their use of weed, and ignored both the American Medical Association and the LaGuardia Commission, both of which declared publicly that marijuana was not physically addictive, Romano said.
The LaGuardia report, prepared by the New York Academy of Medicine, concluded that “Marihuana is not the determining factor in the commission of major crimes,” and that it “does not lead to addiction in the medical sense of the word.”
Anslinger, though, argued otherwise.
“There are 100,000 total marijuana smokers in the U.S. and most are Negroes, Hispanics, Filipinos and entertainers. Their satanic music, jazz and swing, result from marijuana usage,” Anslinger said, according to the brief Romano filed with the court. “This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”
In order to make sure that prohibition was carried out by individual states, Anslinger drafted the Uniform State Narcotics Act, adopted in 1939 by the state of Connecticut “almost verbatim” according to Romano’s partner, Naomi J. Fetterman.
“Connecticut adopted an act that was premised upon a racially discriminatory purpose,” Fetterman said.
Bradley’s attorneys argue that, not only was the basis for the law a Constitutional violation, but that the implementation of that prohibition is also racist.
The ACLU, for example, said in a 2013 study that there is a wide racial disparity in how that law is enforced.
“Enormous disparities exist in states and counties nationwide between arrest rates of Blacks and whites for marijuana possession,” the study said. “Nationally, Blacks are 3.73 times more likely than whites to be arrested for marijuana possession.”
In Connecticut, blacks make up 30.3 percent of arrests for marijuana, despite being only 11 percent of the total population, according to the ACLU.
That, according to Romano, was Anslinger’s point all along: “Now that you have a criminal record you can’t vote.”
The state replies
William Bradley is white. That fact, established by the trial court, is the first argument used by state’s attorneys to dispute the claims made by Romano and his client.
He’s not black, so he can’t have been discriminated against.
“The nonwhite minority defendant lacks the standing to vindicate the equal protection rights of minorities,” the state wrote. “To the contrary, if Caucasians are prosecuted less often, the defendant gained an advantage.”
If Bradley can, in fact, claim that his own Constitutional rights have been violated, the state argued, that would mean all criminal defendants could claim equal rights violations on behalf of all groups.
“The fact that the defendant faced criminal liability was insufficient by itself to allow him to raise the rights of minority defendants,” the state’s brief says.
But, even if Bradley can throw in his lot with minorities, the state contends that Connecticut’s antimarijuana statute was not necessarily racist at its core, calling it “facially neutral”:
“As to discriminatory intent, while defendant claimed that the commissioner of the Federal Bureau of Narcotics had racist motives in lobbying for the Uniform State Narcotic Drug Act when Connecticut Adopted it in the 1930s, there was no evidence racist views actually influenced the legislature.”
According to the state, there may or may not have been racial motivations behind Harry Anslinger’s push to ban pot, but Romano failed to show that the discriminatory purpose extended to the state level.
“While racism and xenophobia existed, and appears to persist in some quarters,” the state wrote, the presumption that the legislature harbored a “discriminatory purpose in prohibiting the sale of marijuana is clearly erroneous.”
The trial court agreed on one point, but not the other. Bradley’s race did not prevent him from raising the question of equal protection, but the racist basis of the law was not successfully established.
“The trial court agreed that Mr. Bradley had standing to raise the claim ... even though he was Caucasian, but disagreed that cannabis prohibition in Connecticut is based in a racially discriminatory purpose,” Fetterman said.
Legalization irony
The legalization of marijuana through legislative means was one of Gov. Ned Lamont’s first stated initiatives.
“Legalizing recreational marijuana like our neighbors will make for a safer market that will be carefully regulated and taxed,” Lamont said in his first budget address.
The legislative effort failed, in part because some of the strongest opponents were vocal members of the clergy, largely from innercity, minority churches.
For example, the Rev. Carl McCluster, pastor of Shiloh Baptist Church in Bridgeport, said during a press conference that he might be “on the streets today” if he didn’t straighten himself out after “at age 16 when some of my friends enticed me to try marijuana.”
On the other side of the fence is State Sen. Gary Winfield, who has long said that Connecticut’ s prohibition on cannabis disproportionately affects communities of color.
“Equity must be at the forefront of the conversation around the legalization of cannabis,” Winfield said in March.
Up the ladder
Bradley appealed after the trial court’s decision against him, though that decision left room for an appeal.
The state’s appellate court heard arguments in the case at the end of September, and Fetterman said they expect a decision “in three or four months.”
After that, whoever loses will probably appeal to the State Supreme Court, which may or may not decide to hear the case.
But, Fetterman said, if the courts find that Roma