Alessandro Clark-Ansani1Alessandro Clark-Ansani is a J.D. Candidate at the University of Chicago Law School, Class of 2023. He thanks Anson Fung, Matthew Makowski, Virginia Robinson, and the University of Chicago Law Review Online team.
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In August 2021, the Honorable Miranda M. Du, Chief Judge for the district court of the District of Nevada, struck down 8 U.S.C § 1326, the federal criminal statute that addresses “illegal reentry” into the United States. That groundbreaking decision, United States v. Carrillo-Lopez (D. Nev. 2021), relied on the test established in Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), which had held that when a legislature enacts a facially neutral law with a discriminatory purpose in a way that disparately impacts a specific group, that law violates the constitutional right to equal protection. Noting the pervasive racist history of the illegal reentry statute and the disparate impact on Latinx people in the United States, Chief Judge Du found that Section 1326 was in violation of the U.S. Constitution according to the Arlington Heights test.
While Carrillo-Lopez is a groundbreaking case, it merely scratches the surface of how racist histories pervade the federal criminal law, particularly when it comes to federal drug criminalization. As many have noted, the decades long “war on drugs” in the United States has a deeply racist history. It wasn’t until 2010 that Congress reversed a decades long policy to punish crack cocaine, which was predominantly used by poor Black people, at eighteen times the rate of powder cocaine, a nearly identical drug which was predominantly used by wealthy white people. Even today, as more and more states legalize or decriminalize marijuana, federal law still considers marijuana a Schedule I substance under the Controlled Substances Act, despite the fact that marijuana was first criminalized in response to growing anti-Mexican sentiment in the United States that coincided with Mexican immigrants coming to the United States in the early twentieth century and bringing a cultural tradition of smoking marijuana.
Taking guidance from Carrillo-Lopez’s willingness to apply the Arlington Heights test to overrule racially motivated criminal laws, this Case Note applies the principles of Arlington Heights to federal laws criminalizing marijuana, arguing that courts should find such laws to be an unconstitutional violation of the Equal Protection Clause due to their disparate impact and discriminatory intent in passage.
I. Analysis of Carrillo-Lopez
To make an equal protection claim under the Arlington Heights test, the movant must demonstrate both disparate impact and that “racially discriminatory intent or purpose” was a “motivating factor in the decision.” Discriminatory intent can be identified through a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” such as historical background, legislative history, sequence of events, departures from normal procedural sequences, and even whether the law “bears more heavily on one race than another.” If a movant can establish these conditions, the burden then shifts to the government to show that “the same decision would have resulted even had the impermissible purpose not been considered.”
The Carrillo-Lopez2Carrillo-Lopez is currently on appeal before the Ninth Circuit. Even if overruled, Judge Du’s reasoning still serves as a model for Courts to overturn criminal laws that were passed with racist motivations and that disproportionately harm communities of color. The final result in Carrillo-Lopez would inform, rather than determine, the application of Arlington Heights to federal marijuana laws. court found that Section 1326 easily satisfied the test for disparate impact by relying on evidence showing that Mexican and Latinx individuals comprised “well over 80% of border crossing apprehensions” and prosecutions.3The Carrillo-Lopez court notes that “these apprehensions are being prosecuted,” and FY 2020 statistics from the U.S. Sentencing Commission confirm that “99.1% of illegal reentry offenders were Hispanic.” Even the government didn’t dispute that Mexican people were disparately impacted, though it did maintain this was a result of Mexico’s geographic proximity as opposed to racial animus.
Moreover, the history of Section 1326, passed in 1952, and its predecessor, the Undesirable Aliens Act (Act of 1929), established that racist intent was a motivating factor in the passage of both acts. Evidence at trial revealed a nativist and eugenics movement against Mexicans that heavily influenced the legislative history of the Act of 1929, with racial vitriol expressed in Congress’s debates directed almost exclusively at Mexicans.
In response, the government argued that since illegal reentry was recodified in Section 1326 more than twenty years later, the statute was cleansed of its racist history. The government relied on Abbott v. Perez (2018), which held that the Arlington Heights test is not violated when a subsequent statute is substantially different from its predecessor and there is no evidence that the reenacting legislature “carried forward the effects of any discriminatory intent.” However, the Carrillo-Lopez court disagreed that these requirements were met: it found that Congress’s silence on the history of the Act of 1929 and the lack of any significant alterations to the statute known to be animated by racial animus meant the original racial animus had carried over into the recodified statute. Accordingly, later amendments didn’t legitimize the statute under the test established by Hunter v. Perez (1985), a predecessor to Abbott.
Moreover, the court also relied on contemporaneous evidence from 1952 showing continued racial animus including the use of the derogatory term “wetback” in Congressional debates, the lack of Congressional debate about making the criminal provision more punitive despite an awareness of the disparate impact on Mexican and Latinx people more broadly, and the passage of the so-called “Wetback Bill” mere months before the passing of Section 1326. In total, the evidence showed disparate impact and a discriminatory purpose that persisted even after reenactment.
II. Applying Lessons from Carrillo-Lopez to Federal Marijuana Laws
Carrillo-Lopez is novel not in the sense that it alters the traditional Arlington Heights test. It is novel in its willingness to recognize the racist history and racially disparate impact of Section 1326 and its willingness to overrule the statute on that ground. This Part seeks to embrace this willingness to critically evaluate the history and impact of our criminal law, specifically by applying the Arlington Heights test to federal marijuana criminalization.
A. The Discriminatory History of Federal Marijuana Laws
As the Carrillo-Lopez court’s reasoning demonstrates, a proper application of the Arlington Heights test to federal marijuana laws requires an understanding of the historical development of these laws. Marijuana was first criminalized in response to growing anti-Mexican and anti-Black sentiment through the Marihuana Tax Act of 1937, which created draconian fines and even imprisonment terms for those who engaged in the sale of marijuana without getting appropriate government documentation, effectively making it illegal. The pioneer of the act was Harry Anslinger, the head of the Federal Bureau of Narcotics, who propagated racist and false statements about marijuana, including that marijuana “makes darkies think they’re as good as white men,” that marijuana caused violence, and that most marijuana smokers “are Negroes, Hispanics, Filipinos and entertainers.”
Though the Marihuana Tax Act was eventually declared unconstitutional in 1969, marijuana was immediately recriminalized in the Controlled Substances Act (CSA) the following year, which made it a Schedule I drug along with other drugs such as heroin and LSD. At this time, the focus of the racist attacks had shifted to Black people, and marijuana was described as an “inner city” drug that led to murder, rape, and insanity.
At the time of passage, marijuana’s classification as a Schedule I drug was meant to be temporary and subject to studies by the CSA-established Commission on Marihuana and Drug Abuse. But even though the Commission shortly thereafter recommended decriminalizing marijuana, the Nixon administration fought to keep it illegal. Years later, it became clear why. John Ehrlichman, who served as the Nixon Administration’s Domestic Policy Chief and was one of the President’s closest political advisors, said:
We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.
An affidavit from Roger Stone, another former Nixon Administration member, confirmed this motivation. He stated that “in criminalizing cannabis, Nixon believed he had devised a seemingly neutral basis upon which to target protestors and persons of color—his perceived enemies—without raising constitutional concerns.”
A key defense to an Arlington Heights claim is that the law would have been passed even without the racially discriminatory intent. This defense fails when applied to the CSA. Marijuana’s classification was meant to be temporary until further studies were conducted, and those studies eventually recommended decriminalizing marijuana. We now know that the reason the Nixon administration pressured Congress to keep it illegal—despite the CSA-established commission recommending decriminalization—was to use it as tool for criminalizing unpopular groups. Accordingly, it is impossible to say that marijuana would have remained criminalized even without the racially discriminatory intent given that it was precisely the racially discriminatory intent that prevented it from being decriminalized.
B. The Disparate Impact of Federal Marijuana Laws
Today, the racist origins of federal marijuana criminalization are apparent in the disparate impact seen on communities of color. Despite Black and white people using drugs at similar rates, a 2010 study found that Black people are arrested at a rate of 3.73:1 compared to white people. Moreover, this disparity is likely even more pronounced due to lack of federal data on Latinx people, since many Latinx people were likely counted as white for the purposes of federal data. Indeed, in New York, one of two states for which Latinx arrest data is available, a similar nearly 4:1 disparity between Latinx and white arrests persists.
As such, the disparate impact prong of the Arlington Heights test is easily met. Even though some states have decriminalized marijuana in recent years, Black people are still 3.6 times more likely than white people to be arrested for marijuana, according to a 2020 version of the original 2010 study. While this may seem like an improvement, the disparity in arrests actually worsened in 31 states.
C. Federal Marijuana Laws Fail the Arlington Heights Test
The above analyses show evidence of both disparate impact and also discriminatory intent behind the Marihuana Tax Act and the Controlled Substances Act. In both cases, it is clear that racial animus motivated the statutes when one looks to the historical background, legislative history, and departures from normal procedural sequences previously described, along with the way the statutes affected one race more than another. Moreover, the necessary government rebuttal showing that “the same decision would have resulted even had the impermissible purpose not been considered” becomes an incredibly difficult argument to make considering that the Commission on Marihuana and Drug Abuse—created by Congress to evaluate the effects of marijuana—recommended decriminalization, but the Nixon administration pushed Congress to keep marijuana criminalized so it could politically use it as a weapon against people of color. Indeed, it seems that marijuana was on track to be decriminalized if it weren’t for the racial animus motivating the Nixon administration. The consequences of this decision have led to the disparate impact in enforcement we see today.
Thus far, all courts that have considered whether the Controlled Substances Act violates the Arlington Heights test have ruled that the statute does not fail the test. However, the analytical approaches used by these courts either ignore key facts or use flawed reasoning. For example, in United States v. Pickard (E.D. Cal. 2015), the court only considered Henry Anslinger’s racist comments in the context of the Marihuana Tax Act, and did not consider the involvement of the Nixon administration in the passage of the Controlled Substances Act. While the court in United States v. Heying (D. Minn. 2014) did consider the Nixon administration’s involvement, it gave the involvement insufficient weight since it deemed that Congress, not the President, should be the actor whose motives are questioned. It similarly gave little weight to Congress following the Nixon administration’s guidance to not decriminalize marijuana after the temporary classification period had expired and the established commission had recommended decriminalization. This analysis ignores the realities of the political system and the significant power the President has in setting Congress’s agenda. It also ignores the President’s power to dictate his own party’s agenda. Congress criminalized marijuana because the Nixon administration told it to. Moreover, Congress failed to decriminalize marijuana despite the commission it established recommending decriminalization because the Nixon administration told Congress to keep it criminalized. To absolve Congress of Nixon’s racist motivations in criminalizing marijuana distorts the realities of the political process and creates a pathway for racially discriminatory policies to be enacted through the President’s significant influence over Congress.
Today, the racist history of marijuana criminalization weighs heavily on this country. Even though the Biden administration has directed the Department of Justice to not prioritize prosecuting violations of federal marijuana laws in states that have legalized or decriminalized cannabis, over 46,000 people remain incarcerated for federal marijuana offenses, many of them for simple possession. And federal marijuana convictions have adverse immigration consequences for thousands. Moreover, though the current administration is not enforcing the racially motivated law on the books, there is nothing stopping future administrations from enforcing the marijuana criminalization provisions of the CSA in the same way that the Trump administration did. To prevent unpredictable application of racially motivated federal marijuana laws in the future, courts should certainly follow the lead of the states and end the criminalization of marijuana by declaring these laws unconstitutional now.
Finally, looking forward, illegal reentry and marijuana criminalization are merely the tip of the iceberg. The United States has the highest rate of human caging of any country in the world, with over two million people behind bars at a given time. Many of the laws used to reach this result were motivated by racial animus, including most drug laws but also including immigration laws and non-unanimous jury laws. While courts should certainly follow the lead of the states and end the criminalization of marijuana by declaring marijuana laws unconstitutional, they should also go further. Whenever criminal laws were motivated by racism or racial animus, courts should apply the Arlington Heights test rigorously to both federal and state criminal codes as a step towards ending mass human caging.
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Alessandro Clark-Ansani is a J.D. Candidate at the University of Chicago Law School, Class of 2023. He thanks Anson Fung, Matthew Makowski, Virginia Robinson, and the University of Chicago Law Review Online team.