In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions. During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions. As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March. Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C. Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief. Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures. With these developments, we have again updated our 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. As of this writing, 15 states and D.C. have legalized adult-use marijuana, and 16 additional states and one territory have decriminalized marijuana to some degree. Twenty-three states and D.C. have enacted expungement, sealing, or set-aside laws specifically for marijuana, or targeted more generally to decriminalized or legalized conduct (compared to 17 states and D.C. as of March 2020). Six states have developed specialized pardon programs for marijuana offenses (compared to 4 states as of March 2020) 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 provides strong evidence of what Professor Douglas A. Berman has described as the “linking and leveraging” of the marijuana reform and expungement movements. I. Developments in marijuana record relief Starting in the 1930s, Congress and many states criminalized marijuana (on the basis of openly racist rhetoric and against the recommendations of the American Medical Association), increasing the penalties over time. Forty years later, the tide slowly began to turn. 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 was no longer punishable by incarceration. Contemporaneously, states were enacting medical marijuana laws, and at least 36 states and four territories 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 legalization campaigns using messages of “white individualism” 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; with Michigan following suit in 2020. So far this year, another six states (AZ, MI, MT, SD, VT, VA) have enacted marijuana-specific expungement or sealing laws including automatic relief measures in Vermont and Virginia. In the Democratic presidential primary, many candidates called for broad-based expungement of marijuana records. President-elect Biden promised to “decriminalize cannabis use and automatically expunge prior convictions.” While the president lacks authority single-handedly to expunge even federal convictions, he indisputably has the ability to encourage action from Congress—which is now considering a bill to end federal marijuana criminalization and expunge records—and from the States. 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. Let’s dig into the twenty-three states and D.C. that have enacted expungement, sealing, or set-aside laws specifically for marijuana, decriminalized, or legalized offenses. Ten states and D.C. authorize people to submit petitions to expunge convictions involving small amounts of marijuana. Five states authorize petitions for a wider range of offenses often with simplified procedures. Six states have gone much further to provide automated relief, and in some cases expanding eligibility criteria to a broad range of offenses. These laws are discussed further below, and in more detail on our chart, which also provides citations. Six states have laws that direct the government to provide for automatic relief, and authorize petition-based relief, for a range of marijuana offenses (CA, IL, NY, NJ, VT, VA): CA: Prob. 64 (2016) authorized individuals who had completed a sentence for a wide range of marijuana offenses to petition the court to have the conviction either 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 same 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 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 in the interim authorized courts upon petition to seal records immediately upon completion of sentence. Legalization passed at the ballot in 2020. NY: SB 6579 (2019) provided 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 may be destroyed upon written request. The law provides for an information campaign to inform the public of automatic marijuana vacatur and expungement. VT: On October 7, 2020, the governor signed S.234, authorizing automatic expungement of convictions involving possession of 2 ounces or less of marijuana entered prior to January 1, 2021, said expungement program to be completed no later than January 1, 2022. In addition, 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.” VA: Per a 2020 law, public access to records of decriminalized marijuana possession convictions in the central repository is automatically limited and employers and educational institutions are prohibited from inquiring about them. Five states authorize petitions to expunge, set-aside, vacate, or reduce a broader set of marijuana offenses often with streamlined procedures (AZ, OR, MI, MT, WA): AZ: Effective July 2, 2021, courts must, upon petition, expunge arrests, charges, and convictions for certain possession, consumption, transportation and cultivation offenses. 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 that date, 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. MI: In October 2020, a streamlined process for setting aside marijuana misdemeanors was enacted, effective immediately. HB4982 streamlines petitions for marijuana misdemeanors with a presumption in favor of set-aside for offenses that have been decriminalized. HB5120 provides for a rehearing or appeal where set-aside of a marijuana misdemeanor is denied. MT: Effective Jan. 1, 2021, a person serving a sentence—or who has completed a sentence—for an act now legalized or now punishable by a lesser sentence may petition for an expungement, resentencing, and/or redesignation. 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. Ten 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): 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, courts 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, prior to April 11, 1976, was convicted of misdemeanor possession—or sale without remuneration—of 42.5 g or less of marijuana, and the conviction would be a petty misdemeanor as of April 11, 1978, 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” (seal) 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, including the payment of fines and fees, the court shall order expungement without cost to the person. In addition, North Dakota authorizes sealing for “first offender” marijuana possession; and Utah streamlined the process for expunging convictions for possession of cannabis used for medicinal purposes by bypassing the requirement to apply for a certificate of eligibility. Beyond marijuana- and decriminalization-focused expungement laws, many states have general record relief laws that may apply to marijuana offenses among other offenses. III. Specialized pardon programs for marijuana convictions Six states have established pardon programs specific to marijuana offenses (CO, IL, ND, NV, PA, WA): CO: Per a 2020 bill, the governor may pardon a class of defendants convicted of possession of up to two ounces of marijuana. On Oct 1, 2020, Gov. Polis pardoned 2,732 people with marijuana possession convictions. 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, Governor Burgum 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. NV: In June 2020, the Nevada State Board of Pardons Commissioners passed a resolution to summarily pardon those convicted of possession of one ounce or less of marijuana. See FAQs. However, the Board was unable to identify the records of this offense for: 1) people charged prior to 2001, when this offense was a felony; 2) people charged with this offense who pled to other offenses. Nonetheless, these convictions can still be pardoned upon application. 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.
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