Legalizing marijuana and expunging records across the country
As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda. Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in more than a dozen states. Most of these laws cover only very minor offenses involving small amounts of marijuana, and require individuals to file petitions in court to obtain relief. But a handful of states have authorized streamlined record reforms that will do away with petition requirements and cover more offenses. In the 2020 presidential race, Democratic candidates have called for wide-ranging and automatic relief for marijuana records.
Given these important developments that we expect will continue in the present legislative season, we have put together a chart providing a 50-state snapshot of:
(1) laws legalizing and decriminalizing marijuana;
(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and
(3) pardon programs specific to marijuana offenses.
We hope this tool will help people assess the current state of marijuana reform and work to develop more expansive, accessible, and effective record relief.
As of this writing, 26 states, D.C., and one territory have legalized or decriminalized marijuana to some degree. Eleven states and D.C. have done both. Seventeen states and D.C. have enacted expungement, sealing, or set-aside laws specifically for marijuana, or targeted more generally to decriminalized or legalized conduct. Four states have pardon programs for marijuana offenses. Our 50-state chart documenting these laws is available here. We will update this chart to cover new legislative developments as they occur. For example, just this week both chambers of the Virginia legislature passed a bill that would decriminalize possession of small amounts of marijuana and limit access to records of such offenses.
This comment describes some of the history of marijuana decriminalization, legalization, and expungement reforms, recent trends, and the current state of the law in this area. It attempts to provide evidence for what Professor Douglas A. Berman recently described as the “linking and leveraging” of the marijuana reform and expungement movements.
I. Recent developments in marijuana record relief
Starting in the 1930s, Congress and many states criminalized marijuana (on the basis of openly racist rhetoric), and increased the penalties over time. Forty years later, the tide slowly began to reverse. Between 1973 and 1978, close to a dozen states decriminalized offenses involving small amounts of marijuana, making the maximum penalty a fine. After a two-decade hiatus roughly covering the height of the so-called War on Crime, beginning in 2001, more than a dozen additional states followed suit. Some of these new decriminalization laws authorized people to petition the courts to expunge convictions for conduct that is no longer punishable by incarceration. Contemporaneously, states were enacting medical marijuana laws, and at least 33 states and D.C. now have such laws.
Legalization of recreational use and sales of marijuana began in 2012 and 2014, although the first four states to legalize showed little interest in facilitating the expungement of past marijuana arrests and convictions. (I argue in a law review note that “white individualism” in these legalization campaigns implicitly reinforced marijuana prohibition’s racist legacy and tended to correlate with a lack of interest in policies such as expungement.) It was not until 2016 that one legalization state, California, began significant efforts to deliver relief for individuals with marijuana records. California’s 2016 ballot measure included important provisions authorizing courts to seal records, reduce offense levels, and re-sentence people in jails and prisons, upon request. A number of local district attorneys began to proactively secure relief on people’s behalf.
Professor Berman, encouraged by these developments in California and other efforts by marijuana reformers to push for removal or reduction of past convictions, called in an early 2018 article for greater “linking and leveraging” of the marijuana reform and expungement movements.
Professor Berman’s call seems to have been heard. In 2018, four states (CA, DE, MA, RI) authorized record relief specific to marijuana offenses, as part of a set of 29 bills authorizing criminal record relief more generally. California’s law was most notable, providing systematic procedures at the state and county level to seal and reduce marijuana arrests and convictions without requiring individuals to file applications. Pennsylvania, with the enactment of its groundbreaking Clean Slate Act of 2018, jump-started a trend toward automating record relief for a range of non-conviction and conviction records more broadly.
In 2019, as part of broader set of 67 bills creating, expanding, or streamlining criminal record relief, eight states authorized record relief specific to marijuana offenses (DE, HI, IL, NH, NJ, NY, OR, WA), with automatic processes authorized in Illinois, New Jersey, and New York. Following Pennsylvania’s lead from the previous year, Utah, California, and New Jersey enacted important generally applicable “clean slate” automatic relief measures.
In the 2020 Democratic presidential primary, many candidates have called for broad-based expungement of marijuana records, including the two leading candidates still in the race. Sen. Bernie Sanders’ campaign website states that he will legalize marijuana through executive action and “[v]acate and expunge all past marijuana-related convictions.” (It bears noting that the president lacks authority single-handedly to vacate and expunge even federal convictions, though he indisputably has the ability to encourage Congress and the states to act.) Similarly, former Vice President Joe Biden promises as president to “decriminalize cannabis use and automatically expunge prior convictions.” (Same comment.)
II. A national look at marijuana expungement laws
Our 50-state tool aims to help individuals with records, policymakers, advocates, journalists, and scholars understand the rapid changes in marijuana expungement law, and to encourage further efforts to expand relief. The chart is adapted with permission from Alana Rosen’s “High Time for Criminal Justice Reform” with updates to reflect legislative changes in the past 18 months.
Let’s dig into the seventeen states and D.C. that have enacted expungement, sealing, or set-aside laws specifically for marijuana, decriminalized, or legalized offenses. Most of these jurisdictions (12 of 18) authorize people to submit petitions to expunge convictions involving small amounts of marijuana. Two states authorize petitions for a wider range of offenses with simplified procedures. Recently, four states have gone much further, expanding eligibility criteria to a broader range of offenses and streamlining procedures to provide automated relief. These laws are discussed further below, and in more detail on our chart.
Four states have laws that direct the government to provide for automatic relief, and authorize petition-based relief, for a wide range of marijuana offenses (CA, IL, NY, NJ):
- CA: Prob. 64 (2016) authorized individuals who had completed a sentence for a wide range of marijuana offenses to petition the court to either have the conviction dismissed and sealed, resentenced, and/or redesignated, depending on the offense. AB 1793 (2018) replaced the requirement of individualized filings with an authority for systematic relief for eligible cases (unless the prosecutor objects), to be completed by July 1, 2020. Records of arrest and conviction for possession or transportation of small amounts of marijuana, adult or juvenile, “shall not be kept beyond two years from the date of the conviction or from the date of the arrest if there was no conviction…” Most marijuana offenses by individuals under 18 are destroyed when the person reaches 18.
- IL: In 2019, Illinois authorized automatic expungement of “minor cannabis offenses” (defined as involving possession of not more than 30 grams, no enhancements and no violence) in two phases: the state police were directed to identify eligible arrests and convictions and 1) to take steps themselves to expunge arrests not resulting in conviction; and 2) to send eligible convictions to the governor through the Prisoner Review Board for a pardon authorizing expungement. In December 2019, Governor Pritzker issued pardons to 11,017 people with eligible convictions. The law also authorized courts to expunge misdemeanors and Level 4 felonies involving a greater amount of marijuana, on petition by the affected individual or the State’s Attorney, subject to a balancing test.
- NJ: While efforts to decriminalize and legalize marijuana failed in 2019, a bill was enacted that expanded expungement eligibility to a broad range of marijuana and hashish convictions (along with other classes of offenses), directed for the development of an automatic “sealing” system for such convictions where all terms of the sentence have been completed (including payment of any financial assessment), and authorized courts upon petition to seal records immediately upon completion of sentence.
- NY: SB 6579 (2019) provides for automatic vacatur and expungement of convictions for offenses for possession of two ounces or less of marijuana, to be completed by August 27, 2020. The expunged record is only available to the subject of the record and is destroyed upon written request. The law provides for an information campaign to inform the public of automatic marijuana vacatur and expungement.
Two states authorize petitions to set-aside, vacate, or reduce a broader set of marijuana offenses with streamlined procedures (OR, WA):
- OR: Persons with convictions for possession, delivery, or manufacture of marijuana may file a motion to set aside the conviction after one year, if the defendant was under 21 at the time of conviction, has not been convicted of another offense excluding traffic violations, and has fully complied with and performed the sentence. For purposes of eligibility for set aside, marijuana offenses committed before April 21, 2017, are classified as if the conduct occurred after 21, 2017, and decriminalized offenses are treated as class C misdemeanors. Persons with convictions committed before July 1, 2015 for marijuana possession of less than 1 ounce, who have fully served the sentence, may apply for set-aside without paying any fee, file fingerprints, or complete a background check or identification. A person may file a motion to reduce the offense classification of a marijuana conviction if, since the conviction, the offense has been reduced and the person has fully served the sentence; no fee may be charged. The Oregon Circuit Courts have set up an online filing system for marijuana set-asides and reductions.
- WA: Any person convicted of a misdemeanor marijuana offense, who was 21 years or older at the time of the offense, may immediately apply to the sentencing court to vacate the conviction, and if the person is eligible, the court “shall” do so.
Eleven states and D.C. have authorized record relief in cases where the offense conduct has since been decriminalized or legalized (CO, CT, DC, DE, HI, MD, MA, MN, NV, NH, RI, VT):
- CO: Upon petition, courts must seal the records of misdemeanor marijuana possession or use offenses that would not have been crimes if committed on or after December 10, 2012. Anyone convicted or charged with underage possession or consumption of marijuana may apply for sealing.
- CT: Upon petition, court must order destruction of convictions and other criminal records in cases where the charges resulting in conviction have been decriminalized.
- DC: Persons with conviction and non-conviction records for decriminalized and legalized offenses may file motions to seal the records (a motion “shall” be granted unless there were other associated charges or convictions, in which case it may be granted “in the interests of justice”).
- DE: Any person convicted of a single offense for possession, use, or consumption of marijuana under Del. Code Ann. tit. 11 § 4373, prior to December 18, 2015, is eligible to petition the state police for mandatory expungement (provided the other requirements for mandatory expungement are met). Any person convicted of a single offense for possession, use, or consumption of 1 ounce or less of marijuana, who was under the age of 21 at the time of the offense, may upon reaching the age of 21 apply to the court for expungement.
- HI: Upon motion, a court “must” grant expungement of a conviction for possession of three grams or less of marijuana, if no other charges were brought.
- MD: A person may petition for expungement of a conviction if “the act on which the conviction was based is no longer a crime.” A person may also petition for expungement of any conviction for marijuana possession four years after satisfactory completion of sentence, including probation.
- MA: Upon request, records of conviction for an offense “which is no longer a crime” may be sealed immediately, “except in cases where the elements of the offense continue to be a crime under a different designation.”
- MN: A person who was convicted of an offense prior the 1976 decriminalization of possession or sale without renumeration of 42.5 g or less of marijuana, and the conviction would now be a petty misdemeanor, may petition for expungement.
- NV: A person convicted of an offense that is “no longer punishable as a crime” (except traffic offenses) may submit a request to the court to seal the record, which “shall” be granted unless there is an objection from the prosecutor, with a showing of good cause by clear and convincing evidence why the request should not be granted. No filing fee may be charged.
- NH: A person who was arrested or convicted before September 16, 2017 for obtaining, purchasing, transporting, or possessing 3/4 ounce of marijuana or less, may at any time petition the court to annul the arrest and court record.
- RI: A person may immediately file a motion for the expungement of records “related to an offense that has been decriminalized subsequent to the date of their conviction.” The court must hold a hearing, and if it finds that all conditions of the sentence have been completed, included the payment of fines, fees, the court shall order the expungement without cost to the person.
- VT: A person who “was convicted of an offense for which the underlying conduct is no longer prohibited by law or designated as a criminal offense” may petition for expungement immediately upon completion of sentence, including satisfaction of any restitution. Expungement “shall” be ordered “unless the court finds that expungement would not be in the interest of justice.”
Beyond marijuana- and decriminalization-focused expungement laws, many states have general record relief laws that may apply to marijuana offenses among other offenses.
In addition, four states have established pardon programs specific to marijuana offenses (IL, ND, PA, WA):
- IL: As discussed above, Illinois authorized automatic expungement of “minor cannabis offenses” which includes sending eligible convictions to the governor through the Prisoner Review Board for a pardon authorizing expungement. In December 2019, Governor Pritzker issued pardons to 11,017 people with eligible convictions.
- ND: A Pardon Advisory Board policy adopted in 2019 authorizes people convicted of marijuana possession who have had no convictions in the past five years to “submit a Summary Pardon Application” (form, July 2019). In Jan. 2020, the governor pardoned 16 people under this authority (of 26 recommended by the board). As of Feb. 2020, the board was seeking more applicants. The Office of the Governor estimates that as many as 175,000 people may be eligible for relief.
- PA: The Pennsylvania Board of Pardons has established an expedited review program for certain non-violent marijuana convictions.
- WA: Gov. Inslee has pardoned a number of people convicted of marijuana possession offenses no longer criminal under state law, pursuant to his Marijuana Justice Initiative (eligibility: sole conviction for adult (21+) misdemeanor marijuana possession, between Jan. 1, 1998-Dec. 5, 2012, prosecuted under WA state law).
The full 50-state chart is available here.