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Linn County Marijuana Diversion Program May Reinforce Racial Disparities, Retired Judge Warns

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Douglas Palmer via flickr creative commons
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https://www.flickr.com/photos/diacritical/4628043944/
The Linn County Attorney's Office is launching a limited marijuana diversion program, allowing qualifying defendants to avoid a criminal record.

Starting next month, the Linn County Attorney’s Office will launch a limited marijuana diversion program, allowing some to avoid a criminal record for possession of the drug. The change is intended to help first-time offenders sidestep the far-reaching collateral impacts of a conviction, but there are concerns the program could reinforce racial disparities in the county’s criminal justice system.

Beginning Jan. 1, those charged with possessing a personal amount of marijuana or drug paraphernalia may be able participate in the county’s diversion program, if they meet certain criteria. The program is limited to first-time offenders with no prior felony convictions.

Assistant county attorneys will consider these and other factors in deciding whether a defendant qualifies for the program. If so, they will have 180 days to obtain a substance abuse evaluation from a “credible substance abuse treatment provider” and complete 10 hours of community service in order for the county attorney’s office to drop the criminal charge and recommend the court expunge the defendant’s record.

It will be ultimately up to a judge’s discretion whether to expunge the arrest record.

Linn County Attorney Jerry Vander Sanden says the program has been a long time in the making.

“I've been in the office here for over 37 years and during that time I've seen attitudes about marijuana and marijuana enforcement change dramatically,” he said. “And our laws don't always keep up with the evolving changes in attitudes.”

While more than half of U.S. states have decriminalized or legalized marijuana, Iowa’s Legislature has resisted calls from advocates to do the same. Vander Sanden says the diversion program is meant to bridge this divide between the letter of the law and changing public attitudes.

“We are caught in a situation where we're…we still have the obligation to enforce the law, to enforce the law fairly,” he said. “We recognize that there are other ways to do that that can keep somebody out of the criminal justice system.”

“We are caught in a situation where we're…we still have the obligation to enforce the law, to enforce the law fairly [...] we recognize that there are other ways to do that that can keep somebody out of the criminal justice system.”
-Linn County Attorney Jerry Vander Sanden

Vander Sanden says the program is especially apt at a time when he’s seeing more Iowans turn to alcohol and other drugs as a means of coping with the extreme financial and emotional stress brought on by the coronavirus crisis and this year’s derecho.

Retired federal judge Mark Bennett sees it as a positive first step and “congratulated” Vander Sanden for taking it. But Bennett notes the program falls short of other more progressive reforms elsewhere in the country, and worries the program may reinforce racial disparities, because Black Iowans are much more likely than white Iowans to have a prior record of marijuana possession, despite using the drug at similar rates.

“I see significant problems with [the program]. And it's very restricted in terms of who's eligible,” said Bennett, who directs the Drake University Law School Institute for Justice Reform and Innovation. “By definition, that's going to have a disparate impact on Black males, because they have a higher incidence of prior charges and convictions for possession of marijuana. And under the eligibility requirements for Linn County, they'll be excluded.”

According to a report issued earlier this year by the ACLU, Iowa ranks among the worst in the nation for disparities in arrests for marijuana possession, with Black Iowans arrested at seven times the rate of white Iowans. In Linn County, Black residents are more than nine times as likely to be arrested.

Vander Sanden told IPR that the program is designed to be “race neutral”, but Bennett says that’s not sufficient to counteract the inequities in Iowa’s criminal justice system.

"By definition, that's going to have a disparate impact on Black males, because they have a higher incidence of prior charges and convictions for possession of marijuana. And under the eligibility requirements for Linn County, they'll be excluded.”
-retired U.S. District Judge Mark Bennett

“The fact that the Linn County program is race neutral on its face does not mean that it won't have a disparate impact based on race. And in fact, I’m fairly confident that it will,” Bennett said. “It's not fair to let somebody off the hook just because they say, ‘we have a policy that's race neutral.' You have to look to see whether the policy has an adverse impact on Blacks.”

Bennett points to diversion programs in other states that allow defendants to participate regardless of prior convictions. In Harris County, Texas, home of Houston, defendants who participate in a voluntary marijuana diversion program don’t face an arrest or criminal charge at all. That’s in contrast to Linn County’s program, which could still result in a criminal charge, if a judge doesn’t expunge the record.

Bennett said this, and other aspects of the program which rely on discretion, could allow for an individual’s implicit bias to further reinforce racial disparities.

“And sometimes discretion is a good thing,” Bennett said. “But it's real clear in terms of explicit, implicit bias that the more discretion people in law enforcement have, the greater likelihood is that the use of that discretion could have a disparate impact, particularly on race.”

The Linn County Attorney’s Office plans to review the effectiveness of the program at the end of 2021 and may consider modifying or expanding the scope of the program moving forward.