It has been over a decade since the first U.S. states legalized cannabis for recreational use, and no one seems entirely satisfied with the results. Conservatives worry about rising consumption levels, adverse health effects, and cultural-moral decline. Regulators fret over unlicensed dispensaries, untested products, and marketing tactics aimed at adolescents. Meanwhile, the progressive activists who led the charge for cannabis legalization complain that it has amounted to a windfall for a small set of companies while doing little to advance social or racial justice. What went wrong?
In Pot for Profit, Joseph Mello offers an eye-opening take on this question from the vantage point of those disenchanted activists. Employing a “sociolegal” framework that emphasizes the interplay between law and culture (pp. 4–8), Mello chronicles how the cannabis community helped to catalyze a historic transformation in American drug policy, only to see the movement coopted by business interests. Cannabis reformers in the late twentieth century tended to view themselves as part of a radical counterculture. As medical marijuana became increasingly mainstream, however, many in the movement embraced a “neoliberal respectability politics” (pp. 61–63), trading in their “tie dye” for a “suit and tie” (p. 56) and cultivating corporate support in a bid to achieve full legalization.
The plan worked. A majority of American adults now live in a state where they can smoke pot lawfully. But the multibillion-dollar market for legal cannabis does not resemble a hippie paradise so much as a typical regulated industry, with lawyers and lobbyists swarming and large multistate operators reaping much of the profit. Few cannabis firms are led by minority entrepreneurs, formerly incarcerated individuals, or others victimized by the war on drugs; in one early study, “America’s Whites-Only Weed Boom,” journalist Amanda Chicago Lewis found that Black people own just one percent of the nation’s storefront dispensaries. The notion that cannabis legalization would “function as reparations” and “repair the damage that was done to communities of color by the policies of mass incarceration” (p. 81) now looks like a pipe dream.
Pot for Profit is especially strong in documenting the ways in which cannabis activists came to feel estranged from, and left behind by, the industry they fought to create. Many works have explored the history of cannabis prohibition or the costs and benefits of legalization. By contrast, I am not aware of any prior scholarship that foregrounds the plight of the alienated activist to such an extent. Drawing on dozens of interviews that he conducted with cannabis reformers and workers, Mello skillfully intersperses their own words with his analysis to illustrate the sources of their alienation, such as the arduous and expensive application process for a cannabis business license that shuts most candidates out at the threshold. Pot for Profit is valuable both as an anatomy of a specific social movement’s confrontation with the laws of capitalism and as a case study of the general pitfalls and tradeoffs that come with political success. Anyone who fears the cannabis community lost its soul in conquering the market will want to read this book.
Pot for Profit has less to say about the law side of the law-and-society method that it adopts, which may limit its appeal to other audiences as well as its ability to parse the problems it uncovers. Some of the features of the cannabis industry that Mello finds most regrettable are not inevitable byproducts of legalization; rather, they are distinctive pathologies of contemporary U.S. drug law and constitutional doctrine. Paltry rates of minority ownership, for instance, reflect not only the logic of “racial capitalism” (pp. 10–11) but also the Supreme Court’s controversial interpretation of the Equal Protection Clause to prevent government officials from granting various preferences and set-asides for minority-owned businesses. Similarly, the abundance of large multistate operators reflects not only the logic of federalism and economies of scale but also the Court’s reading of the Commerce Clause to forbid many state measures that prioritize local firms. All of the state-level developments that Mello discusses, moreover, have taken place against the backdrop of federal prohibition, which further squeezes small businesses by limiting access to banking services, tax write-offs, government-backed loans, and other corporate-law privileges. While Pot for Profit is sharply critical of the racially and fiscally exclusionary regulatory regimes found in “green” states, those regimes have been shaped by a federal legal framework that deserves a good deal of the blame.
Is there a better way to regulate cannabis? At times, Mello comes close to suggesting that regulation itself is anathema to the progressive values of the early cannabis community. Framed around the ideas of Michel Foucault, chapter 3 “reveals that, instead of giving up its power over cannabis, the state has merely exchanged one mechanism of controlling this industry for another” (p. 79). It is not clear how a legalizing jurisdiction could have done otherwise. Shape-shifting as power may be, this framing of the issue provides scant guidance for those who wish to move U.S. drug policy away from the punitive prohibitionism that has failed so spectacularly and to replace it with a more humane and pragmatic alternative. More worrisome, the claim that cannabis reform has merely extended the state’s “carceral power … beyond the walls of the prison into all aspects of social life” (p. 79) could be read to imply a perverse equivalence between legalization and criminalization. Purchasing pot used to expose millions more Americans to a risk of actual incarceration; now it exposes them to a sales tax. Does that not count as progress?
A more balanced assessment of cannabis legalization’s first decade might grant all of the disappointments that Mello diagnoses and more, while acknowledging that some meaningful “progressive social change” (pp. 138–139, 156) has in fact occurred. Legalization has slashed the number of people subject to needless police stops, searches, and arrests, thereby advancing—however inadequately—the cause of individual liberty and racial justice. It has generated hundreds of thousands of full-time jobs and billions of dollars in tax revenue. It has demonstrated the potential for ballot initiatives to facilitate broadly popular policy changes that had been blocked in the legislature. A truly emancipatory horizon may still be a long way off, but after nearly a century of futile and destructive criminal bans, the recent reforms count as reefer sanity.
To head toward that horizon, we will need the government to do more, not less. Mello may be correct that legal cannabis has been “overregulated” in certain respects (p. 92), as in the case of criminal record restrictions for obtaining a business license. But in other respects, cannabis consumers and suppliers have been woefully neglected. Only a robust, federally supervised regulatory approach is capable of addressing the real public health concerns raised by adolescent use, novel synthetic products, and so forth, while also curbing corporate consolidation, encouraging cannabis cooperatives and other nonprofit models, and subsidizing the entrepreneurial efforts of historically marginalized groups. Somewhat incongruously with his earlier enlistment of Foucault, Mello nods to this last point in the book’s penultimate paragraph, when he notes that “there is no path toward true equity that does not involve a significant role for the state” (p. 158). Pot for Profit offers important insights into the compromises and conflicts that have marked cannabis legalization to date. I hope that in future work, Mello will help us chart a more righteous path forward.
