WA SECTF - Work Group - Non-Violent Offense Policy and Home Grow - Public Meeting
(August 9, 2022) - Summary

Home Grow - Disparate Impacts of Prohibition of Home Cultivation

Work group members organized a presentation on the policy history and state arrest data related to residential home grows before drafting a recommendation to the task force.

Here are some observations from the Tuesday August 9th Washington State Legislative Task Force on Social Equity in Cannabis Non-Violent Offense Policy and Home Grow Work Group (WA SECTF - Work Group - Non-Violent Offense Policy and Home Grow) Public Meeting.

My top 5 takeaways:

  • A presentation on the subject by patient advocate John Kingsbury provided background, including implications for public safety and social equity, and highlighted data suggesting arrests for home grow type cultivation were racially disproportionate.
    • Michelle Merriweather, a task force member and work group co-lead, established their “goal to come away with good recommendations for home grow” for the full task force by their Tuesday August 23rd meeting (audio - 1m). 
    • John Kingsbury, chair of the Patient Caucus of the Cannabis Alliance who was fighting “a bad case of” coronavirus, began with a basic question of “what is social equity, and does home grow fit into that?” (audio - 20m, presentation)
      • Kingsbury had advocated for cannabis home grows repeatedly in the Washington State Legislature (WA Legislature). He was a co-founder of Homegrow Washington, which shared information about HB 1019.
      • Offering the statutory definition that social equity goals were “reducing accumulated harm suffered by individuals, families, and local areas subject to severe impacts from the historical application and enforcement of cannabis prohibition laws,” Kingsbury summarized the point as “to reduce harms.” His frame of reference in applying this to residential cannabis agriculture was based on two issues:
        • “Is it in line with the purposes of I-502,” was a question Kingsbury had often heard from lawmakers who told him “we made this agreement ten years ago” and were concerned home grow would “divert” from that. He said “politics” had been the only reason it was left out of I-502, with polling suggesting a “thin margin” of voters were “uncomfortable” with the concept. The initiative passed “56 to 44[%]” without home cultivation.
        • Kingsbury relayed the attitude of I-502 sponsors that “it was very important to pass this law because of the number of people who are being put in jail for possession of a small amount of cannabis.” Because “70% of Americans believe that cannabis should be legalized,” he argued that the public had had time to evaluate cannabis reform, and “like it by a large margin, and I believe they’d be fully on board with the legalization of residential cultivation.”
        • Whether there was “inequity caused by the prohibition of the home growing of cannabis” was difficult to quantify, acknowledged Kingsbury. He considered the HB 1443 definition of disproportionately impacted areas (DIAs) as those with high rates of:
          • Poverty and unemployment
          • Participation in income-based or state programs
          • Arrest, conviction, or incarceration related to the sale, possession, use, cultivation, manufacture, or transport of cannabis.
      • Kingsbury focused on the third criteria, finding others were “harder to…get into” in relation to cannabis cultivation data from the Federal Bureau of Investigation (FBI) National Incident-Based Reporting System (NIBRS). He was able to get arrest information from 2012 to 2019 that included racial demographics and the “garden size” for the cannabis “crime code cultivation,” breaking down arrests by race for plant counts which would’ve been legal under HB 1019.
        • Kingsbury elaborated that he’d been assured by both FBI and state law enforcement representatives that “the total number of arrests may be lower [on his table] than the reality. It could be, for every seven arrests indicated here there may…have actually been ten in the real world, but that they are representative. Those seven will look like those ten in terms of race,” plant count, and other factors. “The total number should be low, but the representation should be accurate,” was what he’d been led to believe.
        • Besides race, Kingsbury requested the data broken up by county and garden size, but learned that the garden size couldn’t be broken up on the NIBRS dataset, but because the plant count was listed, he was able to apply the limits of the last legalization bill himself. He added that he was “surprised how many there were.”
        • Another thing Kingsbury noticed was that African Americans in Washington were “taken into custody” with otherwise “small plant seizures” compared to other racial groups arrested for the same offense who “were just issued papers.”
        • Learn more from FBI uniform crime reporting for the state and the crime data explorer. On May 24th, a brief report by Congressional Research Service staff on voluntary law enforcement reporting to the updated NIBRS intake system stated that the FBI was “not releasing the expected quarterly data due to agency participation falling below a 60% participation threshold.” Bureau officials “further stated that it will not release state-level estimates if the participating [law enforcement agencies] in a state cover less than 80% of the state population.
      • The implications of arrests for cannabis cultivation in the state, a class C felony, had “a lot of impact on your life, on your family, and your future,” stated Kingsbury. Medical cannabis patients with authorizations had an affirmative court defense, but could still be arrested for small cannabis grows, he explained. Patients only received arrest protection in law after registering in a state database, he added. Landlord and tenant rights around medical grows were similarly “unclear” in law, dependent on the conditions in a lease, but Kingsbury noted cannabis use or cultivation had long been prohibited in federal housing, even in states where medical or recreational use was legal.
      • Emphasizing that he used the limits in HB 1019 and “threw out any arrest that wasn’t that,” the inequitable application of the law remained “clear.” Delving into the arrest data “just for home grow sized activity” (six plants producing 16 ounces of cannabis or less grown by persons 21 or older), Kingsbury found that “there’s a big disparate impact.” 
      • He set “White people at a baseline of 1.0,” measuring arrests in a given year for other races to be compared to that baseline. A Black person in Washington had “five times the chance” they’d be arrested for a home growing offense than a Caucasian counterpart, he commented, while the rate for Hispanic individuals was “2.4 times more likely than a White person for the same activity.”
      • Kingsbury pointed to a University of Washington (UW) report on possession arrests from 2018 which found that “after 2012…the total number of arrests for everybody went down, there were fewer arrests for possession.” But over time, the disparity “increased,” he remarked, claiming neither he, nor researchers, would venture a guess as to why. “But I found the same thing here with cultivation,” he told the group, “the disproportionate change of arrest, based on race, increases as the years go.”
        • Kingsbury reported that there was a reason Asians were “pulled out of this column” and that there was a “long and complicated” reason he’d made that choice. 
      • Having established that there was a disparate impact in “home grow-sized activity” arrests, Kingsbury understood the exact magnitude of the disparity would depend on what level of cultivation was deemed legalized. “When you change the details, you do change the disparity somewhat,” he concluded.
      • Kingsbury encouraged broad stakeholder inclusion and consideration of unintended consequences. For example, he’d been asked if home growing would “increase break-ins.” His opinion was that after a few people committed burglary only to find “cannabis has like a two-week window or ripeness and they steal the weed equivalent of a bunch of green apples” people would catch on “and that will be reduced.”
      • Reviewing the details of HB 1019, Kingsbury described them as corresponding to “laws that already exist in” medical and adult use production like proximity to day cares and restrictions on public odor and visibility. 
      • Washington was also an “outlier” in restricting home cultivation, and other state limits gave officials a good idea about “what will happen, because this is being done in a lot of places.” He noted that Colorado had a “nightmare story,” but lowered their limit from 99 plants per household to 12, and “those problems are solved.” Kingsbury added that fears relating to the impact of huge grows, “500 plants,” hadn’t been proposed and wasn’t “what we’re talking about” with residential cultivation.
      • Kingsbury believed the equity implications of home growing included keeping individuals out of jail, which would benefit “disproportionately affected communities.” He also believed that it didn’t increase youth access since growing “is the hardest way to get it” compared to asking an older relative or friend to get them cannabis. Moreover, a home growing bill could be race-neutral, he indicated, a factor regulators had found was important to the legal viability of equity policies. Even with home growing applying “to everybody equally…the result of passing that law” would “be disproportionately beneficial” for disproportionately impacted communities without being “preferential.”
  • Work group members talked about the possible recommendations they could offer the full task force, how they might benefit market or general equity, and whether they should advise re-submitting prior bill language or more limited action.
    • Danielle Rosellison, Trail Blazin' Productions Co-Owner and Cannabis Alliance Adjunct Board Member, complimented Kingsbury’s presentation and commented that she’d be in favor of passing HB “1019 as written,” as she found it was a proposal that was “already done” (audio - 1m).
    • Merriweather spoke to the “powerful” perspective of Kingsbury’s information (audio - 1m).
    • Paul Brice, Happy Trees Owner and “advisory community member,” offered his experience as someone who had a “double felony” on his record for “exactly six plants” because authorities decided empty pots proved “intent to grow more plants” and led to another charge. Kingsbury’s arguments were “hitting close to home” (audio - 1m).
    • Jim MacRae, Straight Line Analytics Founder, was similarly complimentary of Kingsbury’s work. He inquired about the absence of data on Asians in his estimate, speculating it related to “a pattern I’ve seen reported in the media of busts that involve general homes in which quite a few undocumented immigrants are working” to “pay off their transport” to the U.S., skewing arrest figures “significantly” (audio - 3m).
      • Kingsbury explained that he encountered “a lot of arrests where Asians were…arrested for one plant,” frequently he’d “see on the same day, a whole bunch of people marked ‘Asian’ being arrested” in the same jurisdiction for a single cannabis plant, and “a couple people with, like 480 pounds, and 10,000 plants.” As he looked further he determined that people were being charged with a single plant as part of “larger activity, and maybe what law enforcement was doing was charging them the minimum amount” to “keep them in the system because maybe they saw them as victims.” Nonetheless, Kingsbury’s understanding of this pattern in arrests was that it pertained to large, organized activity, and wasn’t “activity that would be legalized by the home grow bill, and I wasn’t quite sure what to do with that.” Seeing it repeatedly, he found that it “skewed it enough” that he removed it entirely. MacRae deemed that a “good call,” and was confident the series of arrests related to “basically commercial operations.”
    • Chris Anderson asked about permitting home cultivation as “alternative options for retail or grow operations.” Kingsbury answered that his “filter” in applying the standards of HB 1019 involved “no commercial activity, it is explicit in that particular bill” and others he’d seen. Home cultivation was for personal access, “you can’t sell it.” Anderson understood, responding that he thought personal cultivation might be a social equity license option if there weren’t any more of the existing license types for equity applicants (audio - 2m).
  • The work group drafted a recommendation covering both legislative challenges and criminal history considerations for the social equity retail program, as well as suggesting a plant limit consistent with other legal cannabis states.
    • Sherman joined the dialogue on their recommendation language by advising that it “line up with the other recommendations from the task force” and support residential agriculture in relation to social equity instead of referencing a bill “that doesn’t actually exist any more.” A broadly worded suggestion that defined what they meant by personal cultivation, how it helped equity goals, and additional details was the format they’d developed so far, he remarked. Legislation was generally the ideal outcome, “but it’s not really always working out like that.” Sherman divided the language into a recommendation summary, rationales supporting it, and other facts that were descriptive and not “prescriptive.” Ideally, their recommendation to the full task force should be “short, sweet, and broad” (audio - 8m). 
      • Kingsbury brought up that the “disproportionate impact is quantifiable” in this instance, and not “vague, it’s got numbers on it.” He also couldn’t “get out of my head how severe the consequences are” for a “pretty innocuous” activity, as arrests impacted educational and housing support. He interpreted the policy as society essentially saying “you can’t go to school” and “trashing people’s future for a pretty stupid crime, if you ask me.”
      • Slaughter was curious about including home cultivation limits in other states. Kingsbury relayed that he’d picked six plants in drafting HB 1019 “because most states do six plants,” though some were higher or lower, “almost everybody else is six plants.”
    • Merriweather confirmed that they wanted to recommend six plants, with Kingsbury saying that 15 plants “per house” had been allowed in HB 1019 when there were multiple adults in a house, but it “doesn’t have to be done that way” (audio - 3m). 
      • Asked about the fate of prior home grow bills, Kingsbury stated they tended to “pass by a good margin” in the policy committee, the Washington State House Commerce and Gaming Committee, before stopping in the Washington State House Appropriations Committee. “From what I can tell, it comes down to one legislator,” he said, identifying Representative Timm Ormsby, the committee chair. “I’ve done head counts,” Kingsbury continued, certain the last bill would have passed if there’d been a vote.
      • Merriweather thought equity issues should come up in lobbying for any future bills. Kingsbury concurred, but found it “awkward for me to go in as an aging White male to make the social equity argument.” Even with the data to back it up, he found it missed the “human impact” to contextualize the information. As Urban League of Metropolitan Seattle President, Merriweather was confident others could help make that point.
    • Recognizing equity implications of ending disproportionate arrests for home grow type offenses, Brice still felt Anderson’s question was “misunderstood.” He asked “what are we trying to say” in the work group’s recommendation, as he noted the ideas discussed didn’t relate to “financial gains” of any disadvantaged population (audio - 7m).
    • Slaughter made a final request for specific numbers to add to the recommendation language, with a consensus forming that a six plant garden was a common limit in other states which was “defensible” to the wider task force and lawmakers (audio - 9m).
      • Kingsbury conveyed that he’d spoken to “leadership” in the Washington State Senate (WA Senate) about support for a companion bill for any future residential agriculture legislation.
      • Rosellison inquired about “removing the class C felony for more than six plants,” making some larger grows a less serious criminal offense. Merriweather thought that was a worthy consideration for their recommendation. Brice thought the best help was getting “minorities” into the licensed cannabis market, uncertain about making bigger grows a less serious offense, since that behavior was for commercial, rather than personal, use.
      • Slaughter read the draft of their recommendation adding, “specifically, the six to 99 plants has a misdemeanor instead of a class C felony, previous convictions in this bracket to be dropped to a misdemeanor.” Merriweather endorsed that wording.
    • In concluding remarks, Rosellison said there’d been previous mentions that “if we’re going to right the wrongs of the war on drugs” and get “minorities into the 502 industry, we need to help fix the 502 industry at its core.” She thanked the work group for pursuing this point of view in their work.
    • Jim Makoso, Lucid Lab Group Director and WA SECTF Co-Chair, joined the conversation late, but encouraged keeping their recommendation “simple,” commenting that the task force had seen “pushback outside of the industry with what equity means.” He wanted recommendations that made it “easier to communicate what the outcomes that we desire” were (audio - 4m).
  • WA SECTF Manager Anzhane Slaughter went over the next steps for the full task force ahead of submitting their final report to lawmakers on home growing and other topics (audio - 5m).
    • With the final meeting of their work group concluded, Slaughter drew attention to the next full task force meeting on August 23rd. Members would consider and vote on recommendations from their group as well as the Production Work Group, and also hear public comments. She thanked members of the work group and public for their involvement, especially Merriweather’s work with the Urban League. Merriweather echoed her gratitude to participants as well.
    • WA SECTF would end in 2023, Slaughter stated, and their final meeting was expected to be held “in October.” She encouraged the public to stay abreast of their work and the application window by checking out WSLCB social equity resources and joining the WA SECTF email listserv.

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