As cannabis regulation becomes a reality in Europe, racial justice must be at the centre of our movement’s advocacy

On 22 March, German lawmakers finally adopted a bill that will decriminalise cannabis possession and home growing, and will create a regulated framework for supply through non-profit cannabis clubs. While a significant step, the draft law retains a prohibitionist framework and will create two-tiered cannabis justice. While middle-class white users are likely to have easier access to cannabis, people from racialised groups will continue to face policing and prosecution. How we got to this place—and the current uncertainties about how the bill will be implemented makes clear that we must centre racial justice and social equity in efforts for cannabis regulation in Germany and across Europe.

In Germany, people from racialised and migrantised communities have been disproportionately criminalised for drug-related offenses. This is driven by practices such as widespread racial profiling by police, and local laws that grant police authority to control people without individualised suspicion in self-designated crime “hotspots”, which tend to be in migrantised¹ or racialised neighbourhoods. Police control cannabis on a wide scale, with 214,242 cannabis offenses recorded in 2022. Of an estimated 40,000 cannabis cases sentenced each year,² 28% are against non-German citizens,³ with enormous consequences for people’s mental health, employment prospects, and more.

Enforcement of cannabis has targeted people from racialised and migrantised groups despite evidence of similar levels of drug use among groups in Germany

Enforcement of cannabis has targeted people from racialised and migrantised groups despite evidence of similar levels of drug use among groups in Germany. In addition to that, 90% of drug supply is estimated to occur behind closed doors, in a market served primarily by white Germans. This means that the concentration of police powers in racialised populations and neighbourhoods is little else than an arbitrary practice, grounded on prejudice rather than evidence. We at the Justice Collective, an organization focused on discriminatory criminalisation of people in Germany, find that the new cannabis law will do little to remedy these disparate impacts of cannabis criminalisation.

Under the new law, people in Germany will be able to grow and possess cannabis, with a limit of 25 grams of cannabis (50 grams at home), and up to three plants per person. They will also have access to a regulated supply via non-profit cannabis clubs.

But these liberalising measures are accompanied by other policies that continue patterns of punitive punishment for cannabis offenses. For example, there is a restrictive limit on the quantities users can legally possess,⁴ and people can be fined for using cannabis within 100 meters of schools or in cannabis clubs. The draft law is also restrictive in the design of the clubs, requiring, for example, that members cultivate their own cannabis and provide identifying information that can be shared among enforcement authorities. Many from already-marginalised groups are unlikely to have capacity to contribute to cannabis clubs and many will be unwilling to share personal data. As experience in other countries shows, including in Uruguay, when cannabis regulation is too stringent, people are unable to benefit from the law.

Just as regulated cannabis reflects a rethinking about the criminal culpability of consumers of cannabis, so should it prompt an overhaul in how people are criminalised for supply outside of regulated channels, as has been the case in some jurisdictions in the United States that have regulated cannabis.

The persistence of a prohibitionist framework is most visible in how supply outside of cannabis clubs will be sanctioned going forward. Just as regulated cannabis reflects a rethinking about the criminal culpability of consumers of cannabis, so should it prompt an overhaul in how people are criminalised for supply outside of regulated channels, as has been the case in some jurisdictions in the United States that have regulated cannabis.

While the ceilings for punishment for some cannabis-related offenses will be reduced (from five years to three), some of the most arbitrary and harsh aspects of the current law remain in place. Under one provision, people face a mandatory one-year prison sentence for cannabis supply labelled as “commercial”. Our interviews with defence attorneys suggest it is often the most vulnerable who are deemed to be selling commercially, because they sell for survival, a reality for many.The law will also increase some mandatory minimum prison sentences. Our experience suggests that it will be people from racialised and migrantised groups who are racially profiled by police that will continue to be punished for cannabis supply. Nowhere in the law do we find the kind of reparations frameworks adopted in some US jurisdictions, including social policy to facilitate current suppliers’ employment in another field.

Why does Germany’s bill fall short in these ways? In part, it is because the bill was drafted with a more privileged white cannabis user in mind. The debates surrounding the bill were focused on questions of youth and the health effects of cannabis, certainly important considerations. Crowded out was a robust rethinking of what justice should mean under a new, regulated cannabis regime in Germany.

Instead, when it comes to matters of justice and the criminal legal system, law-and-order rhetoric from justice officials—including the police, justice ministers, judges, and prosecutors—has been always at the centre of the cannabis debate, seemingly almost derailing the passage of the bill at various points. They have argued that the illegal market will continue to dominate, and that they will also have more work as they oversee cannabis clubs. Most telling, they have been vocal against the very limited social policy in the law. The bill requires that people who possessed now-allowed quantities may apply to have their records erased, and existing German regulations require retroactive relief to people with open cases. According to these actors’ arguments, the administrative burden of these provisions is simply too high, and the bill should have been reconsidered, or at least delayed. Thankfully, this has not come to pass, but nor have stronger measures been adopted that place the responsibility in the hands of the state to erase records, without applications from individuals.

But every night in jail is one too many for those impacted, every day with the burden of a criminal record harms people’s life prospects, and every additional police control generates more harm.

But every night in jail is one too many for those impacted, every day with the burden of a criminal record harms people’s life prospects, and every additional police control generates more harm. Despite the magnitude of these consequences, arguments for justice and equity—for example, through more robust social policy, expansive decriminalisation, or reinvestment—are scarcely heard amidst a tough-on-crime chorus.

In our view, the reason for this is that the cannabis conversation has, since the beginning, mostly left out the voices of people policed and criminalised for cannabis. Policy makers avoid discussing racial and ethnic disparities, hiding behind a lack of official data on these issues—while also, for example, painting lopsided populist pictures of racialised “criminals” involved in the cannabis trade.

In the last months, we’ve tried to address this shortcoming in the cannabis reform conversation, bringing together a coalition of drug policy advocates and racial justice activists. We developed an evidence base about these disparities and are demanding politicians address the injustices we’ve so clearly identified, in implementation and when Germany’s law is reviewed in a few years. What is also clear to us is that this law could have been stronger if these considerations had shaped the new regulatory framework from the outset: We may have had a law tailored to remedy past injustices and avoid similar harms from occurring in the future.

European jurisdictions have a lot to learn from places in the US and elsewhere that have: reinvested in the people and communities criminalised under prohibition, including with robust social policy and employment opportunities; erasing people’s past cannabis-related criminal records automatically, including for supply; easier access to cannabis markets for consumers; and more aggressive decriminalisation, including for supply and higher thresholds for possession.

As momentum for cannabis regulation continues to grow across Europe, it is likely that other countries will take this model as a starting point, just as Germany was inspired by Malta – the first European country to regulate cannabis in 2022. It is essential that we learn the lessons learnt from the German experience and apply them elsewhere in the continent. And so, we urge activists elsewhere: Racial justice in cannabis regulation in Europe, from the beginning.

And so, we urge activists elsewhere: Racial justice in cannabis regulation in Europe, from the beginning.

Notes

¹ “Migrantised” is a term similar to “racialised”, to suggest that there is a social process through which, in this case, certain areas are understood as “migrant” and associated with certain stereotypes.

² In 2022, of the total 60,754 drug cases sentenced were against non-German citizens. In 2022, 64% of police-recorded drug offenses were for cannabis.

³ Criminal legal system data is unavailable in Germany by racial or ethnic group. Therefore the closest proxy we have for quantifying racism in the system is data on the number of non-German citizens in the criminal legal system. This number is necessarily an over and under count: It is an overcount because not all non-German citizens are from racialised groups and it is an undercount because German citizens from racialised groups are also criminalised.

⁴ By contrast, Minnesota's cannabis regulation, which became law in May 2023, has a domestic possession threshold of 2lbs (907g). In Spain, the threshold is 100g. A moderately experienced grower can easily harvest 150g from 3 plants. The thresholds as they stand are divorced from the reality / practice of growers and users.