Day 4: Social Equity Observations in HB1438

Advocates, legislators and the media have stated that the Social Equity Program in HB1438 is the most comprehensive Social Equity framework to a recreational cannabis bill created to date. A recent graphical comparison by Marijuana Business Daily underscores the truth of this statement:

Another article by Marijuana Business Daily later assessed that “If successful, Illinois could serve as the blueprint for marijuana programs across the United States.”

All of the commonly used Categorical Assessments of Social Equity are explicitly present in the HB1438 Social Equity Program and it can be argued that all of these Assessments are present in the Bill, although not explicitly in the Social Equity program. 

There are other observations, however, that are equally as important when analyzing HB1438 in the context of the history of Social Equity. Among these observations are:

1. Legislative Design: While Social Equity is increasing in popularity in the context of legislative action, particularly among the emerging cannabis industry - the history of Social Equity is not born out of the legislature. In fact, George Federekson noted that under The Classical Bureaucratic Model, politicians have historically held the view that “public administration was neutral and only marginally involved in policymaking.” HB1438 is unique in the larger context of Social Equity because it consists of a comprehensive equity program born exclusively out of the legislature, as opposed to the management style of a Public Administrator or third party decree resultant of a judicial review of the administrative process. 

2. Proactive Administration: Social Equity is reactive by design. The Framework was born out of a need to address salient inequality in Public Administration during infant years of affirmative action. Social Equity was a means to provide Public Administrators with the tools to manage their offices with a mindset of equality. HB1438 creates an administrative function, the principal role of which is equity in developing, monitoring and managing a new regulated industry. The Social Equity Program is proactive versus reactive. It is not a response to a current administrative process, but a new, standalone process altogether.

3. Investment Programming: HB1438 also extends beyond the traditional Social Equity Framework in that the Bill uses revenue from the industry in a manner unrelated to the other ways in which such revenue is used. The cash flow from taxes and fees, minus administrative functions of managing the industry, is exclusively allocated to economic development, education and community programming for communities affected by the War on Drugs as well as sustained outreach to enhance education and participation from such communities. A traditional Social Equity model might, through a revision in management of an existing program, change or alter the execution of a current investment program, but HB1438 creates a unique investment program that exists outside the core function of the Bill; the legitimization and creation of a cannabis market in the State of Illinois.

4. Restorative/ Reparative Intent:  The stated intention of the Social Equity Program in HB1438 is “remedying the harms resulting from the disproportionate enforcement of cannabis-related laws.” It follows that in a traditional sense, Reparations cannot be encompassed by a Social Equity framework because Social Equity is a Public Administrative Framework. Reparations requires a volume of compensation or aide that is in excess of what is possible in a typical Public Administrative context. In other words, Social Equity is the process through which a policy is administered while Reparations is the policy itself. 

5. Market Creation Simultaneity:  HB1438 creates a marketplace in which Equity is a conscious part of the market design. Article 7 reads that the legislature is interested in “establishing a legal cannabis industry that is equitable and accessible.” This distinction is pivotal because it appears to be the first time in American history that a marketplace has been created by legislation and designed around equity. 

These additional factors have the potential to make the Social Equity Program in HB1438 one of the most transformational legislative tools in creating a more equal society. It should be noted, however, that this also suggests that the product of the State Legislature is an evolution of a traditional framework of Social Equity, even from a Neoburechratic lens. The Neoburechratic lens is a new way of interpreting Public Administrative management process, while the State has created a new equity framework altogether.