Tag: marijuana

Marijuana expungement accelerates in 2020

*NEW: Marijuana legalization and expungement in early 2021

Marijuana expungement reforms continued to accelerate last year, and record relief has now attained a more prominent role in the broader legalization movement. As we documented in our recent report on 2020 criminal record reforms, six states enacted specialized marijuana relief laws in 2020, following 7 states (and D.C.) that did so in 2019, and 4 states in 2018. This brings the total number of states with specialized marijuana expungement laws to 23.

In Congress, the House passed the Marijuana Opportunity Reinvestment and Expungement Act in November, which establishes a process to expunge convictions and conduct sentencing review hearings related to federal marijuana offenses. However, the Senate did not bring it up for consideration so it will have to be reintroduced in the new Congress.

In 2020, Arizona and Montana approved ballot measures to authorize expungement for many marijuana offenses; Vermont made expungement automatic for marijuana possession of 2 ounces or less; Michigan and Utah streamlined marijuana record relief procedures; and Virginia restricted access to records of marijuana possession offenses. These laws are described in greater detail below.

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Marijuana expungement accelerates across the country

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.

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Legalizing marijuana and expunging records across the country

*NEW: Marijuana legalization and expungement in early 2021

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.

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Legislative update: third quarter 2019 sees more new licensing and expungement laws

In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction.  A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions.  Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing.  In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record.  Another area of progress was restoring voting rights.

Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions.  Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions).  (California enacted a “clean slate” law shortly after the beginning of the fourth quarter.)  At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.)

By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon.

All of the laws described briefly below are more fully analyzed in the context of the state’s overall restoration scheme, in the detailed profiles of the Restoration of Rights Project.

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Marijuana decriminalization drives expungement reform

The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018.  By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction.  We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year.  Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring.

Another important series of second chance reforms this year has accompanied marijuana decriminalization.  These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”  Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down.  Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2.  We expect that the Center under his management will give restoration of rights an important place on its policy agenda.

The abstract of Professor Berman’s article follows:  Read more