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THIS WEEK IN WEED

In Massachusetts, people of color are the first to get arrested for marijuana — and the last to be licensed

Marijuana and a pipe used to smoke it are displayed on a mirror, in New York.
Marijuana and a pipe used to smoke it are displayed on a mirror, in New York.(Peter Morgan/Associated Press)

Say you’re an entrepreneur from a neighborhood ravaged by marijuana arrests. You hear that Massachusetts wants to help people like you join the legal cannabis industry. Go online to the Cannabis Control Commission’s website, and you’ll see:

“Sorry, The Economic Empowerment Priority Review Program has ended!”

If you weren’t one of the 123 people who knew to apply during a two-week period last April, that window has now closed. And approval was no meaningless label — the certification allows entrepreneurs to skip the line of companies ahead of them once they apply for a state cannabis license, potentially saving time and money.

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But so far, only five empowerment applicants have submitted applications to the commission, and none have opened for business. That has some officials and advocates pushing to reopen the program, which was originally intended to “balance out” a similar headstart granted to existing medical dispensaries.

At a commission meeting last Thursday, Commissioner Shaleen Title pressed to reopen applications for empowerment status, and expand the pool of those who are eligible. It was just one part of a raft of ideas debated by the agency’s five commissioners aimed at making the state’s cannabis industry more diverse and inclusive.

So far, 87 percent of the businesses with pending cannabis applications are owned by white men, according to data self-reported by applicants.

Title argued many entrepreneurs who would have qualified — racial minorities or people with drug records from areas disproportionately hurt by the drug war — didn’t learn about the program until it was too late. (Some have privately questioned whether the CCC did enough outreach to potential participants before the brief application period ended.)

She also suggested that this time around, the criteria could be expanded to other groups the CCC is tasked with including in the industry, such as veterans, farmers, minorities, locals, and women.

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Turns out, the CCC’s top attorney disagreed. Title said Thursday the agency’s general counsel, Christine Bailey, analyzed the proposal and found the commission did not have the legal authority to reopen the priority status program.

The CCC declined to release Bailey’s legal analysis, summarize it, or make Bailey available for an interview. But at the meeting, Title indicated that Bailey’s position was based on the fact that the state’s marijuana legalization law directs the commission to offer priority status in the April 2018 time frame, and does not explicitly give the commission the authority to grant priority status outside that window.

Title also suggested that Bailey found the law requires the commission to “promote and encourage” disproportionately harmed communities, not necessarily “prioritize” them.

“Those words, ‘promote and encourage,’ were written with a firm understanding of the definition of the word ‘promote,’ which is to further the progress of, or to make it higher in rank,” said Title, who said she wrote them in the ballot question. “That’s not just authority, that’s a statutory obligation of the commission.”

Deriding Bailey’s legal analysis as “perfunctory,” Title said Bailey’s conclusion that priority programs could only occur in the law’s specified time frame “would be the opposite of the spirit and intent of the law.”

“Creating priority may help the commission to get closer to its goals and obligations that we have, so far, by objective standards failed to meet,” Title said, calling for boldness. “We will not find express authorization or case law or precedent when this is an obligation that is, by definition, unprecedented and warrants more thoughtful and comprehensive legal analysis.”

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Commissioner Britte McBride weighed in, saying that the commission could set aside the legal analysis for now and focus on other ideas “to address the challenges that we’re faced with.”

The commission is considering other equity measures, including publicly funded no-interest loans, expanded eligibility for programs, and creating shared-space regulations for manufacturers and growers.

They are hopes that, however real, feel far-off to many struggling entrepreneurs.

And while people of color will apparently not receive priority in licensing, a new report by the commission itself shows police have strongly prioritized them — as the subjects of marijuana-related arrests.

The commission’s research arm Thursday released data showing that people of color in the state have overwhelmingly borne the brunt of enforcement when it comes to cannabis laws. The depressing numbers appeared to underscore the need for Massachusetts to provide a more realistic pathway for those in the illicit market to transition into the regulated one — something the empowerment program might help with.

In Boston, for instance, the agency’s researchers found that while black people made up 22 percent of the city’s population, they accounted for 66 percent of marijuana possession cases from 2000 through 2018. Meanwhile, white people, who make up 47 percent of Boston’s population, only accounted for 33 percent of possession cases. The data did not include Hispanics.

Though the racial disparity has persisted, the number of marijuana possession arrests each year has plummeted since 2008, when decriminalization passed. In 2008, Boston police arrested about 1,500 people on possession charges. In 2009, that number dropped to below 400.

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Julie Johnson, the commission’s research director, lamented that different local and state law enforcement agencies track marijuana arrests differently, making it difficult to paint a clear and comprehensive picture. Her department is seeking court data on prosecutions and sentences, she said, but may find that task to be impossible.

Even in the face of such inequities, the vast majority of current and would-be empowerment applicants I talk to say they’re determined to slowly fight their way into the industry. But they’ll be watching closely over the next few months as the commission debates policies that could make doing so easier — and fairer.


Naomi Martin can be reached at naomi.martin@globe.com. Follow her on Twitter at @NaomiMartin.