Legal Marijuana & Necessary Amnesty

Martha Paynter questions whether the discriminatory legacy of gendered and racialized incarceration for drug possession offences can be repaired considering the upcoming legalization of marijuana.


The legalization of marijuana presents an opportunity to address the rising incarceration of women, and redress how incarceration causes the exacerbation of health disparities experienced by criminalized women. Crime has been falling steadily in Canada over the past two decades. The federal legalization of marijuana, set for July 1, 2018, may nearly wipe crime out: the possession of cannabis now makes up more than half of police-reported crime in this country. Despite falling crime rates, the incarceration of women has never been higher. Women are the fastest-growing population in our carceral facilities, and most incarcerated women face charges related to non-violent offences, such as drug-related offences. Marijuana accounts for a higher proportion of drug-related offences that any other substance.

Drug-related charges are tied to addiction and dependency, which in turn can be traced to traumatic histories of childhood sexual and physical abuse. Trauma, poor coping, and addiction form a tight triad. It is estimated that up to 90% of incarcerated women have experienced sexual and physical trauma. Incarcerated women face far higher rates of infection, injury, self-harm, suicide, and mental illness than the general population. Incarceration itself is a traumatizing experience: movement, space, food, access to services and communication are all forcefully monitored and restricted. Incarceration both triggers and exacerbates mental illness. The complexity and prevalence of mental illness, and dire need for solutions, regularly make headlines across the country. Minimizing the incarceration of individuals facing marijuana possession charges and convictions is a logical, economical, and ethical step to support mental health in Canada.

Image Description: Young white woman with brown hair, wearing an orange jumpsuit and handcuffs, sits on a bed in a jail cell. There is a toilet beside the bed. The woman is  looking out through the bars at a female officer who appears to be locking the door.

Rates of incarceration reflect racism in Canadian society. Thirty-eight percent of incarcerated women are Indigenous, and Black women are incarcerated at rates three to four times higher than their representation in the Canadian population. Although incarceration rates are climbing generally, the increasing incarceration of Indigenous and Black Canadians corresponds with a reciprocal decrease in the incarceration of white individuals. Legalization of marijuana presents a moment to critically reflect on how racism has impacted rates of arrests, charges, sentences and administrative penalties along racialized lines, and how amnesty can redress this history.

To make a substantive change in the cycle of criminalization, addiction, and socio-political marginalization, the Trudeau government must pair legalization with amnesty for individuals facing marijuana-related charges. Possession charges can spiral into entrenched involvement with the law. While remanded (in pretrial custody), criminalized individuals can be sanctioned for administrative penalties. They can be put in segregation for swearing. They can rage against being put in segregation and face further punishment.

Most incarcerated individuals enter facilities with addiction, mental illness, and prescribed psychiatric medications. When first incarcerated, prisoners may be enduring withdrawal symptoms. The prison environment is stressful and access to medical care is highly restricted. In these circumstances individuals are likely to “misbehave.” We punish women more severely for failing to act their best. “Boys will be boys”, but girls who misbehave are construed as monstrous, unruly, mean. This societal trope is magnified in the carceral context for drug charges. Women are more likely than men to be incarcerated for possession offences. The criminalization of addiction diverts public attention, care and funds from health services and support to the maintenance and augmentation of carceral institutions.

When women are incarcerated, they travel further than men to be institutionalized. Although the rates of incarcerated of women are rising rapidly, they remain only one in ten prisoners, and there are starkly fewer institutions for women in the country. So imprisoned women are more isolated and have fewer visitors. They are separated from their children, possibly permanently.  The criminalization of parents disrupts the attachment and health of their children, multiplying the negative externalities of incarceration into another generation. The number of women on remand has grown. Remand rates in Canada are extraordinarily high. Even while innocent on remand, you can lose your job, your housing, your family. The disruption of being charged with drug possession – even if ultimately found not guilty – can have catastrophic consequences. Forgiving marijuana possession charges and convictions may keep more children with their mothers.

Poverty and lack of education are factors that drive criminalization. A criminal record creates an unshakeable additional layer of stigma and exclusion from professional development and employment. It prevents criminalized individuals from fulsome social and economic participation in our society and hinders the experience of well-being in the community. It is not a fair price for the historical possession of marijuana.

The legalization of marijuana, undoubtedly a complicated and contentious decision, is morally correct. We need to go further and forgive those who were in the wrong place at the wrong time, possessing marijuana before July 1, 2018. It is but a first step to empower criminalized people to reclaim lost jobs, homes, and relationships. Not doing so leaves a legacy of discrimination enacted through gendered and racialized incarceration.


Martha Paynter is a PhD Student in the Dalhousie University School of Nursing and a registered nurse at the IWK Health Centre. @marthpaynter


Conflict of Interest: Martha Paynter is the President of the Board of Directors of Women’s Wellness Within, a non-profit organization supporting criminalized women in pregnancy and postpartum in Nova Scotia.

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