Abstract

Excerpted From: Tomica Burke Saul, Reparative Entrepreneurship, 2024 Columbia Business Law Review 557 (2025) (199 Footnotes) (Full Document)

The War on Drugs refers to a shift in federal drug policy initiated by President Richard Nixon in the early 1970s. During this time, Black and brown individuals were the targets of over-policing, stringent drug laws, and mandatory minimum sentences for the possession, sale and distribution of drugs. This legislative and prosecutorial “perfect storm” led to unprecedented and disproportionate levels of incarceration for Black people in the U.S. The War on Drugs left individuals and entire communities disenfranchised and economically stunted.

In recognition of the lingering social and economic harm of the War on Drugs, drug advocates have pressured states to legislate a new era of equitable drug policies that recompense War on Drugs survivors. The first national test case is marijuana legalization. Although marijuana arrests made up a substantial percentage of criminal offenses during the peak of the War on Drugs, the legalization of marijuana and burgeoning cannabis industry presents an opportunity for states to acknowledge and repair the harm of the War on Drugs through cannabis social equity measures.

For example, in 2021, the Marihuana Regulation and Taxation Act (MRTA) of New York State legalized recreational cannabis. New York joined fourteen other states in legalizing a substance that over 12% of Americans used according to that year's Gallup Poll -- a number that was nearly double of what was reported in 2013. The structure of Marihuana Regulation and Taxation Act (MRTA) was similar to many other legislative efforts across the country, which primarily established a governing regulatory body, and taxation scheme, and revised penal codes relating to marijuana possession and sale. However, Marihuana Regulation and Taxation Act (MRTA) was distinct in two ways: it acknowledged the harm from the War on Drugs in the legislative intent of the law and it also mandated a social and economic equity plan (“Social and Economic Equity Plan (SEE) ”) to give individuals who were formerly convicted of marijuana crimes priority access to the industry through cannabis industry entrepreneurship opportunities.

Social and Economic Equity Plan (SEE) is ideologically, though not explicitly, connected to the broader movement for Black American reparations across the United States. Social and Economic Equity Plan (SEE) functions as reparative legislation meant to provide recompense for survivors of the War on Drugs, who are overwhelmingly Black New Yorkers. For reparations activists, the War on Drugs is part of a long throughline from slavery to the present day. The over-policing and harsh drug sentencing guidelines that were iconic of the War on Drugs have led to incarceration rates for Black men that are similar to the number of Blacks that were in bondage during slavery. The new cannabis market creates an opportunity for War on Drugs survivors to enjoy the economic upside of what is predicted to be a highly profitable industry, and survivors ought to be included. New York legislators were aware of the historical dynamics of systemic racism in the War on Drugs and the themes of acknowledgement, repair, restitution, and compensation are utilized in public facing materials.

Thanks to a concerted effort among War on Drugs survivors, medical marijuana business owners, lawmakers, the agriculture lobby, and drug policy activists, over 40% of tax revenue from cannabis sales legalized by the New York law was promised to be reinvested into communities most ravaged by the War on Drugs, and a goal was set that 50% of cannabis licenses are to go specifically to social equity applicants. These benchmarks can be considered a victory by those advocates.

Yet, the realization of the social and economic equity plan has not completely lived up to the optimism surrounding the plan's roll-out. New York has taken a self-described “slow-and-steady” approach to the regulated cannabis industry. However, by the close of 2023, only 20% of recreational dispensaries were Black-owned. Moreover, there have been additional implementation issues with the social equity plan such as legal challenges, bureaucratic roadblocks, and an underfunded and mismanaged Cannabis Reinvestment Fund, which is the main source of financial support for social equity business owners. This reality mimics what has occurred in many other states with social equity initiatives. The very individuals who were promised redemption and opportunity in the cannabis “wild west” as a recompense for their engagement with the War on Drugs report disappointment with the new cannabis industry. One dispensary owner admitted that he was making more money in the illegal market.

The irony of this predicament, to be criminalized and prosecuted for selling marijuana, then to be championed and endowed with the tools to sell cannabis, is a case study in using market solutions to repair state harm. Social and Economic Equity Plan (SEE) has more substance than other entrepreneurship policies designed to help socially disadvantaged entrepreneurs. However, the implementation issues point to an underlying deficiency in the law: the absence of a true reparations framework. The United Nations Principles on Reparations declared that victims of human rights violations “should be provided with full and effective reparation ... which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.” When Social and Economic Equity Plan (SEE) is examined under the UN reparations framework, which is also utilized by reparations advocates, its limitations are clearer. Without a true reparative focus, future attempts at equitable entrepreneurship policy will not meet the unique needs of Black business owners.

This Article examines New York's Social and Economic Equity Program as a reparations measure for Black survivors of the War on Drugs. Of particular interest is legislators' decision to utilize state-sponsored entrepreneurship as a transactional exchange for over five decades of state-sponsored persecution. Entrepreneurship cannot be extricated from systemic racism, and traditional entrepreneurship policy measures meant to provide equity to Black entrepreneurs will not succeed unless the harm of years of economic subjugation is acknowledged and repaired through reparations- based entrepreneurship policy. This Article argues that the neoliberal reforms of existing entrepreneurship policy and community reinvestment fall short of the reparative measures that would begin to make War on Drugs survivors whole.

This Article adds to newly emerging scholarship on cannabis policy and cannabis social equity programs from a transactional law and small business entrepreneurship perspective. This Article also furthers the body of critical race theory scholarship that differentiates the experiences of Black entrepreneurs. Access to entrepreneurship is a basic tenant of restorative economic justice for groups that have been formerly denied entry into the market. Finally, this Article contributes the novel concept of “reparative entrepreneurship” as a policy consideration to improve economic outcomes for Black and socially disadvantaged entrepreneurs.

Part II of the Article positions Marihuana Regulation and Taxation Act (MRTA) and Social and Economic Equity Plan (SEE) as reparative legislation by reviewing the law and accompanying public facing materials in light of the current reparations climate in the US. Part III of the Article presents a standard for successful cannabis social equity plans and highlights how Social and Economic Equity Plan (SEE) 's implementation falls short of several markers for success. Part IV asserts that Social and Economic Equity Plan (SEE) 's reparative impact is undercut by its neoliberal policy design and instead analyzes Social and Economic Equity Plan (SEE) under a reparations framework which more closely mirrors its intent. Part IV also explores how to best implement entrepreneurship as a reparative tool for Black people in the U.S. Part IV also presents the idea of reparative entrepreneurship policy and its applicability to Black War on Drugs survivors and other socially disadvantaged groups.

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After dey free us ... we so glad, we makee de drum and beat it lak in de Affica soil .... We glad we free ... but we cain stay wid de folks what own us no mo' .... Where we goin' live, we doan know ....

want buildee de houses for ourselves, but we ain' got no lan' .... We meet together and we talk. We say we from cross de water so we go back where we come from. So we say we work in slavery five year and de six months for nothin', now we work for money and gittee in de ship and go back to our country. We think Cap'n Meaher dey ought take us back home. But we think we save money and buy de ticket ourselves ....

But it too much money we need. So we think we stay here .... [W]e join ourselves together to live ....

'Cudjo, you always talkee good, so you go tell de white men [the Africans' former owners] and tellee dem whut de Affican say [i.e., their request for land in exchange for years of free labor].’ ...

I say, now is de time for Cudjo to speakee for his people ....

I tell him ... 'Cap'n Tim, you brought us from our country where we had lan’. You made us slave. Now dey make us free but we ain' got no country and we ain' got no lan'! Why doan you give us piece dis land so we kin buildee ourself a home?'

Cap'n jump on his feet and say, 'Fool do you think I goin’ give you property on top of property? I tookee good keer my slaves and derefo' I doan owe dem nothin.' ...

Cudjo ... tell dem [the people] whut Cap'n Tim say. Dey say, 'Well, we buy ourself a piece of lan’.' ... We workee hard and save, and eat molasSocial and Economic Equity Plan (SEE) and bread and buy de land from de Meaher. Dey doan take off one five cent from de price for us ....

We call our village Affican Town.

The above excerpt is the first-hand account of a formerly enslavedAfrican man who was newly freed. In the excerpt, Cudjo recounts the joy of his emancipation and the subsequent despair Blacks in America endured with no economic options. These individuals lacked both land and finances because they worked for free their entire lives. They received no reparations from their former master, nor from the government that sanctioned their enslavement. Yet, they were motivated to create their own economic justice through hard work and saving.

The throughline of slavery to the War on Drugs provides the justification for full and adequate reparations on behalf of War on Drugs survivors. Currently, social equity plans are teetering around the edges of reparations. However, policymakers must rise to the occasion and acknowledge the depth of harm inflicted on War on Drugs survivors. Through the equity agenda, New York and a handful of other states have designed social equity plans that are ideologically aligned with the reparations movement. While the policy design is not “successful” by the measures mentioned above, these plans lay the groundwork for a reparative entrepreneurship policy for War on Drugs survivors and other economically disenfranchised groups who demand market space.

Much like with reparations, there is no agreed-upon way to implement reparative legislation. The lessons learned through experimentation, in different states and in different markets will ultimately lead to more comprehensive policies for social equity applicants.

Assistant Professor of Law, Rutgers Law School.