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.