Public housing tenants still face stiff penalties for pot, even in states where it’s legal

Beginning on January 1, 2020, residents of Chicago will be able to buy, sell, and consume marijuana recreationally thanks to a recently passed Illinois law that proponents say offers a fair and equitable examples of pot legalization.

But if you’re an Illinois resident who lives in federally subsidized public housing or uses Section 8 housing vouchers, using marijuana in any form still carries harsh penalties, including potentially eviction from your home. Just last week, managers of Section 8 housing sent out a notice to tenants that read, in part, that “federal law prohibits marijuana use and possession in federally subsidized housing.” Public housing residents in Chicago will receive a similar notice soon.

This discrepancy in state and federal law, one of many concerning marijuana use in states that have legalized recreational or medical use, shows how a double standard over pot still exists, especially for low-income communities and people of color who have been disproportionately punished by the war on drugs. Curbed spoke with lawyers, tenant advocates, and experts on legalization, and they all agree that the existing law around marijuana use in public housing around the country can result in penalties or evictions for tenants using cannabis, even those using marijuana for medical purposes.

“If we’ve legalized it but are only letting a select group benefit from it, despite what they said about it advancing racial equity, we’re falling short,” says Kate Walz, vice president of advocacy and senior director of litigation at Chicago’s Shriver Center on Poverty Law. “If you’re evicted from subsidized housing over this, you’re not likely to make a soft landing elsewhere.”

How federal laws impact public housing

In addition to the Federal Controlled Substances Act, which makes marijuana use illegal, any facility that receives federal funding can’t permit marijuana use per the 1998 Quality Housing and Work Responsibility Act. Federal housing law also allows landlords and public housing authorities to evict tenants who use marijuana in any form, and the 2014 Metcalf Memo mandates that those convicted of marijuana offense be barred from federally assisted housing. A 2013 federal memo from the Department of Justice suggested there would be latitude on the issue of enforcement, but that was rescinded by former Attorney General Jeff Sessions in 2018.

This means that even in states where pot is legal, there’s a strong chance that use of any sort—including medical use—on public housing property may lead to eviction, according to Violet Cavendish, communications coordinator of the Marijuana Policy Project. While there haven’t been many cases concerning public housing tenants and marijuana use yet, she does believe that as more states legalize pot, “it could have the potential to impact a significant amount of people.”

In recent years, a number of public housing tenants have faced consequences for medical marijuana use (Cavendish isn’t aware of anybody being punished for recreational use) John Flickner, a 78-year-old resident of the Niagara Towers apartment in Niagara Falls, New York, was evicted earlier this year for using a vaporizer, part of a regimen to ease chronic pain from a skydiving accident. In July of 2018, Emma Nation and her daughter were evicted from subsidized housing in Arcata, California, for medical marijuana use. And Francine and Timothy Weinandy, a couple in Agawam, Massachusetts, were evicted for smoking marijuana on their patio; he is disabled, and she suffers from cerebral white matter brain disease, a progressive disease that affects the nerves in the brain.

What activists and legislators are trying to do

The lawyers and tenant activists interviewed for this story suggest that real change can only come from the federal government, and they don’t expect significant changes from the current administration.

The contravening state and federal mandates make the issue murky, according to Morgan Williams, general counsel at the National Fair Housing Alliance, and federal law clearly overrules state law.

“Ultimately this should be an area where those with legitimate medial uses are able to secure needed accommodation,” Williams says. “It’s unfortunate that we currently have a federal regime that could in some fashion restrict that.”

Last June, Rep. Eleanor Holmes Norton introduced a bill to allow medical marijuana use in public housing, the Sondra Battle Cannabis Fair Use Act, named after a D.C. resident who lives in subsidized housing and uses cannabis to treat her fibromyalgia.

“Residents like Sondra should not fear eviction from federally assisted housing simply for using cannabis to treat their medical conditions,” Norton said while introducing the bill last summer. “Our bill recognized today’s realities and proven needs. Individuals who live in states where medical and/or recreational marijuana is legal, but live in federally assisted housing, should have the same access to treatment as their neighbors.”

Walz believes that until there’s an administration more open to larger policy shifts on marijuana, a temporary solution may be to create public consumption spaces so tenants can use cannabis products for medical purposes without running afoul of federal law.

“Eventually, we have to get our laws and policies to align so we’re not putting people in a terrible position,” she says.