COVID-19, Not Marijuana Legalization, Is Releasing Cannabis Offenders From Prison

Sometime before Christmas, Richard DeLisi, 71, will finally be released from the Florida prison where he has lived since 1988.

DeLisi is serving a 90-year prison term for selling marijuana. He tried to sell quite a bit of it—1,500 pounds, as a Miami New Times profile recounts—but he was never charged with a violent crime. Nor was he alleged to have hurt anyone.

Marijuana legalization is very popular these days, and DeLisi has already served more than twice the average sentence for murder. So it seems reasonable and good that he’d be let out, to enjoy what time he has left in relative freedom.

For this, he has COVID-19 to thank—and not marijuana legalization.

Legalization is proving extremely effective at creating a new class of entrepreneurs and creating wealth for investors, but not very good at fulfilling some of its most basic promises.

There are about 40,000 people still incarcerated for cannabis crimes across the United States, advocates estimate. And legalization isn’t doing much to help any of them.

DeLisi is being released from prison because he is in poor health. As USA Today reported last week, DeLisi suffers from COPD and asthma. He will likely die if he contracts the novel coronavirus while incarcerated, as has happened to many prisoners across the United States, as advocates for his release told Florida Gov. Ron DeSantis.

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Two weeks ago, marijuana legalization recorded yet another string of victories on Election Day—with wins in red states like South Dakota and Montana along with new-blue Arizona and liberal New Jersey.

Cannabis is not yet legal for all adults in Florida as it is in many other states. As early as 2022, voters in that state are expected to consider a recreational marijuana legalization measure. And, if the success of legalization efforts in Arizona, Montana, New Jersey, and South Dakota on Election Day are any indication, it will be overwhelmingly approved.

He is not being released because cannabis is becoming legal or because there is growing recognition that life sentences for nonviolent drug offenses are irrational or immoral.

There are an estimated 40,000 other people in the United States incarcerated for marijuana offenses, according to the Last Prisoner Project, a nonprofit advocating for their release.

What they and DeLisi demonstrate, in stark outline, is one of the marijuana legalization movement’s greatest failures.

Statewide ballot measures legalizing cannabis for adults and commercializing activity like DeLisi’s do not include across-the-board amnesty for people sentenced to die in prison for that activity.

“We’re not making a lot of progress with depopulating the jails and the prisons in the midst of COVID,” said Martiza Perez, an attorney and the national affairs director at the Drug Policy Alliance, which counts de-incarceration as well as the decriminalization of all drugs among its stated goals.

“I wish I could say the COVID crisis is enough incentive to push lawmakers to act on this, but it’s just not the case,” she added. “We haven’t seen that.”

After years of not doing so, marijuana legalization ballot initiatives presented to voters in recent election cycles do include some concrete criminal-justice reform.

In New Jersey and other states, people with low-level cannabis convictions on their records can have those offenses “expunged,” or removed from their records.

That will help these ex-offenders, punished for possessing or selling small amounts of cannabis, apply for jobs or housing. That will not help anyone else still in jail for cannabis offenses.

Federal marijuana reform would also not help. The MORE Act, currently stalled in the US Senate for lack of a hearing, would deschedule—that is, legalize—cannabis under federal law and provide incentives for states to change their own statutes and let prisoners out of jail. But it would not force states to do this.

For that reason, even if President-elect Joe Biden legalized marijuana, it would not help people like Michael Thompson. A Black man, Thompson was sentenced to a 40-to-60 year term in 1994 after he sold three pounds of cannabis to an undercover police officer in Michigan.

Like DeLisi, Thompson is serving time in a state prison for violating state law. Unlike DeLisi, he’s still incarcerated, and in a state where what he did now is punishable by a term of no more than seven years. (Which is also crazy, but!)

Michigan legalized recreational cannabis in 2018 and now has a burgeoning commercial industry. And Thompson is still in prison—where he can be felled by COVID, or another illness, and where he’s deprived of freedom for a nonviolent cannabis offense.

And marijuana legalization fixed exactly none of that. COVID-19 may have saved Richard DeLisi a few years, but for Thompson and tens of thousands of other people, even the pandemic is no help.

“It’s really terrible,” Perez said. “That’s the only way to put it.”

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