Missouri ‘micro’ cannabis license rules limit review of jail data to 20 years

June 19, 2023 · Missouri Independent

In St. Louis in the 1980s, if you got caught with even a “butt of a joint,” you were going to do jail time, said Bob Ramsey, who was assistant public defender at the time.  

Ramsey particularly remembers the head of the prosecutor’s marijuana task force, under then-Circuit Attorney George Peach. 

“She was just absolutely ruthless and brutal,” Ramsey said. “You didn’t even bother to talk to her because you knew you were going to get a plea-bargain offer for jail time.

Honestly, the Black defendants always seemed to get the worst treatment of all.”

The War on Drugs left many with criminal records that limited their economic opportunity for decades. Now, because of the way state regulators are writing rules for small marijuana businesses, people who live in St. Louis could lose out again — on the economic opportunity to sell legal pot.

Addressing the historic criminalization of Black residents for marijuana offenses has been a big topic of conversation surrounding Amendment 3, the constitutional amendment legalizing recreational marijuana that voters passed in November.

Missouri’s cannabis industry is poised to hit over a billion dollars in its first year of recreational sales — and many believe that people who live in communities that have long felt the brunt of marijuana criminalization should get a piece of the pie. 

Studies show that it’s largely Black communities. 

Advocates pushed for the constitutional amendment to establish a “microbusiness license” program to boost opportunities in the industry for businesses in disadvantaged communities. 

Missouri has licensed 213 dispensaries, 89 infused-product manufacturers and 67 cultivating facilities, almost all started when only medical marijuana was legal in the state. 

And few went to Black-owned businesses

This fall, Missouri will award 48 microbusiness licenses — the only new avenue for licensure created by Amendment 3 — and the window to file applications is July 27 to Aug. 10. The application is now available on DHSS’ website.

But the state’s new cannabis regulations that govern the application process has stirred fear that Black Missourians will once again lose out in marijuana licensing.

The state agency that regulates the cannabis program, the Department of Health and Senior Services, released a list of ZIP codes it will consider to have high incarceration rates of marijuana-related offenses. And none are in North St. Louis where about half of the state’s Black population resides. 

In the St. Louis area, there were three regular ZIP codes are that covered a geographic area, and they matched where the courthouses are. They were downtown St. Louis, which is among the least residential areas in the city, and downtown Clayton, among the most affluent suburbs in the region where the average household income is $200,000. And the last one is for St. Charles, where the population is 90% Caucasian, according to the census. 

Both Ramsey and former Circuit Attorney Dee Joyce-Hayes had an idea why the list likely turned out that way. 

The constitution defines “the historic rate of incarceration for marijuana-related offenses” as 50% higher than the rate for the entire state. But under DHSS’ rules, the agency will just look at incarceration rates for the past 20 years. 

After city jails quickly became overcrowded in the 1980s with the low-level marijuana offenses, they both said incarceration became less likely of a sentence in the cities compared to rural areas by the 1990s. 

“If that’s all they’re going back to, in my opinion they’re only going to find higher incarceration rates for marijuana in the out-state counties,” Ramsey said. “I absolutely think they ought to look back further.”

Joyce-Hayes, who served as city prosecutor from 1993 to 2000, said someone would have to go back at least 40 or even 50 years to see the true impact on Black St. Louis residents. 

“In out-state Missouri, I think they were still making a lot of Mickey-Mouse marijuana type of arrests and prosecutions, but we just weren’t,” she said. “So if you look at the statistics, that would seem to kind of make sense to me that the city’s ZIP codes are not included.”

In an email to The Independent, DHSS spokeswoman Lisa Cox said the data set they have from the Missouri Highway Patrol is the most comprehensive the state currently has. 

“Other data sources we reviewed going back further in time were incomplete and/or based on voluntary reporting,” Cox said. “If an individual would like to propose an alternative source, we may consider it.”

After receiving criticism from local and state NAACP leaders, DHSS issued an eligibility variance on June 6. It essentially says that if a hopeful business owner doesn’t live within one of the listed ZIP codes, then the applicant could provide other documentation that shows the standard, including “results of an independent study or an attestation from a state or local official.”

Nimrod Chapel, president of the Missouri NAACP, said the variance instructions are “about as clear as mud.”

However, Cox said DHSS is allowing applicants to show “additional proofs” other than the specific documentation requested.

“We are designating at least one way to show eligibility with very specific documentation but also allowing for applicants to show eligibility in other ways,” Cox said.

Application criteria

Adolphus Pruitt, president of the St. Louis City NAACP chapter, sat down with DHSS officials in late May regarding the incarceration ZIP codes. He and others are working with the local police department and prosecutor’s office to hopefully dig up information that will meet DHSS’ variance standard. 

However, the incarceration rate is not the only criteria microbusiness license applicants can use, and Pruitt said he’s hopeful the other requirements will help bring in more Black applicants. 

DHSS recently listed ZIP codes for what will be accepted as high unemployment and poverty rates, which he said more applicants from predominately-Black communities would have more opportunities under that list. However, Pruitt said he’s encouraging applicants to consider Census tracts over the ZIP code list because he believes it will have a wider reach.

There is also an eligibility requirement regarding an arrest or conviction for marijuana offense.

DHSS will likely work through some of the questions around the incarceration rates, he said, during the four outreach events June 20-23 in Lee’s Summit, Jefferson City, St. Louis and Springfield respectively. That includes what documentation DHSS will accept if applicants don’t live in a listed ZIP code.

“They got some workshops coming up, and we’re supposed to talk about this at the workshops,” Pruitt said. “I’m doing some digging to come up with what we can use as a way of showing that.”

Microbusiness license applicants must meet one of seven requirements: 

  • Have a net worth of less than $250,000 and have had an income below 250% of the federal poverty level
  • Have a valid service-connected disability card 
  • Be a person who has been, or a person whose parent, guardian or spouse has been arrested for, prosecuted for, or convicted of a non-violent marijuana offense. That doesn’t include a conviction involving distributing of marijuana to a minor or driving under the influence of marijuana. The arrest, charge, or conviction must have occurred at least one year prior to Dec. 8, 2022. 
  • Reside in a ZIP code or census tract area where:
  1. 30% or more of the population lives below the federal poverty level
  2. The rate of unemployment is 50% higher than the state average rate of unemployment
  3. The historic rate of incarceration for marijuana-related offenses is 50 % higher than the rate for the entire state
  • Graduated from a school district that was unaccredited, or had a similar successor designation, at the time of graduation, or has lived in a zip code containing an unaccredited school district, or similar successor designation, for three of the past five years.

(Full Story)

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