Legalizing Marijuana: It Changes Policing, But May Leave Racial Disparities

Enlarge this image toggle caption Courtesy Austin Jenkins /Courtesy Austin Jenkins Courtesy Austin Jenkins /Courtesy Austin Jenkins

Lake Merritt in Oakland, Calif., is a mecca for joggers and families out with their strollers. Along with the smell of sweat and goose poop, weed is an equally present aroma.

Police seemingly take a "light up and let live" attitude here. But Nashanta Williams, who's out walking her dog, says it's not like this in other parts of the city.

"I have been pulled over and been told that my car smells like marijuana and put on the sidewalk and had my vehicle searched," Williams says. "And I felt like they were fishing."

California is one of five states this year where marijuana legalization is on the ballot. Washington and Colorado paved the way for making recreational pot legal back in 2012. Since then marijuana arrests have plunged in Washington. They've also gone down in Colorado, but not by as much.

This raises the question, what is the effect of legalizing marijuana on policing?

It was two years ago when Williams got pulled over. She was driving in East Oakland, down High Street (no joke). Williams says in those African-American neighborhoods, people get profiled.

"Back then I drove a '94 Buick, so I think the stereotype falls into play: 'old car, smells like weed, what has she got going on?' "she says.

Defense Attorney James Clark's office window looks down on the lake. He says this "stop and smell" practice happens across the state. In California, the smell of marijuana gives police probable cause to search someone's entire vehicle. If cops find something bigger - guns, stolen property - Clark says that can turn a traffic stop into a felony.

"You can imagine that if you're trying to advance your career by searching cars along the freeway, that this is a tool that would be difficult to resist passing up," Clark says.

Both Clark and Nashanta Williams are wondering, if recreational pot gets legalized in California, could that be the end of this "stop and smell" practice?

Meanwhile, in Washington state, there have been some changes in policing since the legalization of recreational marijuana. Patrol sergeant Nate Hovinghoff has been with the Washington State Patrol for 11 years and works along the scenic Columbia River Gorge dividing Washington and Oregon, another state that recently legalized pot.

"Prior to legalization in Washington state, odor alone was enough to arrest," Hovinghoff says.

If Hovinghoff pulled over a vehicle, say, for speeding and smelled marijuana, that gave him license to investigate further.

"In my experience as a trooper, probably 90 percent of my felony arrests, they started with the odor of marijuana," he says.

But once pot was legalized in Washington state, the rules of engagement changed.

"Now when I stop a vehicle and I go up and I smell marijuana, if they're 21 years or over it doesn't mean automatically a crime's occurred," Hovinghoff explains.

He says as long as the driver of the car is compliant with the law and not impaired, and that's key, it's basically, "Have a nice day."

But folks like Nashanta Williams aren't convinced that it will go down like that in California. The state already has liberal marijuana laws, but Williams doesn't think everyone will get a fair shake if pot is formally legalized.

"What do I know will happen is they will use it as an in and probably try to harass whatever person of color is smoking in the park. Because what is legal for one is not necessarily what's legal for all," Williams says.

In fact, recent data from police stops in Oakland show that African-Americans are more likely than whites to be searched, handcuffed, and arrested.

That question of disparity is very much on the minds of researchers who are tracking the effects of marijuana legalization. Mike Males is with the Center on Juvenile and Criminal Justice. He released a study earlier this year that's been widely cited.

It shows that while marijuana arrests dropped dramatically in Washington state, African-Americans are still two times more likely to be arrested for marijuana-related offenses.

"So there's still a large racial discrepancy. It doesn't solve that. It does reduce the overall impact of marijuana arrests, but it doesn't change the racial discrepancy as much," Males says.

The bottom line, says Males: "If one of the goals is to reduce marijuana-related arrests then legalization appears to accomplish that."

But it may not resolve disparities in how the law is enforced or applied.