“High Time for Marijuana Expungement”
Any state that legalizes or decriminalizes marijuana should automatically include an expungement provision that clears the criminal record of individuals who engaged in activities deemed lawful under the new legalization or decriminalization laws. This is the thesis of my new article, “High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Laws.” At the federal level, Senator Cory Booker’s recently reintroduced Senate Bill 597, the “Marijuana Justice Act of 2019,” would do just that: remove marijuana from the Schedule of Controlled Substances and expunge records of marijuana possession and use convictions. At the same time, some local governments are focusing on more efficient and expeditious expungement processes. Earlier this year, the San Francisco District Attorney partnered with Code for America to identify and process eligible marijuana cases, including past convictions dating back to 1975. The Denver District Attorney launched “Turn Over a New Leaf Program,” which helps individuals who committed now-repealed marijuana-related offenses vacate the records of their convictions. While Colorado has a marijuana sealing statute (Col. Rev. Stat. § 24-72-710 allows sealing of misdemeanor marijuana possession or use offenses if an individual files a petition, pays a filing fee plus $65, and proves that the offense is no longer considered a crime), the New Leaf Program has attorneys from the Denver City Attorney’s Office guide individuals through the process and ask courts to vacate, dismiss, and seal convictions for marijuana offenses that are no longer illegal.
However—as I document in my article—of the ten states that have legalized, only four states have enacted marijuana-expungement legislation; of the thirteen states that have decriminalized marijuana, only three have enacted marijuana-expungement legislation. My article includes charts compiling the status of expungement statutes in states that have legalized or decriminalized recreational marijuana and includes a model marijuana expungement statute. My article draws on previous scholarship in this area by Professor Douglas Berman (Leveraging Marijuana Reform to Enhance Expungement Practices) and CCRC fellow David Schlussel (The Mellow Pot-Smoker: White Individualism in Marijuana Legalization Campaigns).
As many states continue to legalize or decriminalize recreational marijuana without significant expungement relief, a chasm within our society continues to grow. One segment of the population can use, possess, transport, and cultivate marijuana without fear of prosecution. Another segment of the population suffers from the collateral consequences of previous marijuana-related offenses. These individuals are often denied employment opportunities, professional licenses, financial aid, and public housing. Some individuals cannot travel abroad, purchase firearms, and they are denied the right to vote or serve on a jury. And now, many are banned from entering the legal marijuana industry.
Persons with previous marijuana-related convictions for conduct now deemed legal or no longer criminal should not suffer from the collateral consequences of their now-lawful past “indiscretions.” The intent behind my model marijuana expungement statute is to expedite and efficiently clear people’s criminal records. The statute proposes the creation of a temporary Special Committee, an impartial panel of independent legal professionals who will create guidelines to ensure consistency for criminal record review for expungement and, in some cases, release from prison sentences, community supervision, or deferred adjudication—with an emphasis on fairness to the individual. The New Leaf Program, for example, utilizes prosecutors from the District Attorney’s Office to guide individuals through the expungement process, but traditionally, prosecutors have been responsible for seeking convictions and punishment, along with justice for their community. Prosecutors’ adversarial role can create tensions between preserving convictions and fairness to individuals with a record. Each state’s legislature will determine the length of time a Special Committee should be formed based on the quantity and seriousness of criminal records subject to review.
My model statute will also help rebuild communities that are disproportionately affected by the War on Drugs and marijuana prohibition. Expungement will reduce the cost of probation and imprisonment, as well as create a productive citizenry who will generate taxes. Because there is a higher percentage of people of color arrested and convicted, it is more difficult for these individuals to break into the legal marijuana industry, which imposes barriers on people with a record. Today, there are few entrepreneurs of color in leadership roles in marijuana businesses. In Denver, Colorado, for example, white people make up 84% of dispensary ownership. Access to this industry will allow more people of color to establish their own businesses, and marijuana taxes can be reinvested into community spaces and schools in areas hit hardest by the War on Drugs.
Senator Booker’s Marijuana Justice Act of 2019 proposes automatic expungement on a revolutionary scale for possession and use offenses. (CCRC Executive Director Margaret Love has pointed out that there may be some constitutional issues with the expungement mechanism as currently drafted.) Additionally, the Act would require the Attorney General to withhold federal funds for the construction or staffing of jails or prisons from states that have not legalized marijuana and have disproportionate arrest or incarceration rates for marijuana-related offenses. (The Act would not affect funding for recidivism-reduction programs or drug addiction treatment.) While legalization on the federal level is still uncertain, states that continue to legalize and decriminalize marijuana have the power to enact their own expungement legislation that will allow individuals to rebuild their lives and start anew.
This post with developed with editorial guidance from CCRC staff.
