One of the key goals of cannabis legalization has been to end the harmful effects of cannabis-related arrests and convictions. However, over 8 million people have been arrested for cannabis-related offenses since just 2001 (ACLU, 2020) and, as of 2018, it was estimated that over 20,000 individuals were in state or federal penitentiaries serving cannabis-related sentences (Bloom, March17, 2021). The consequences of previous arrests and/or convictions can persist even in cannabis-legal states. Although the removal, or expungement, of these offenses should routinely accompany cannabis legalization, this is often not the case.
Expungement is a court-ordered process wherein the record of an arrest or conviction is or erased in the eyes of the law, or "sealed.” In the U.S., some state ballot initiatives or legislation calling for the legalization of cannabis legalization have included the offer of expungement for previous cannabis-related offenses. Other states have approached expungement only following cannabis legalization. This latter approach is typically done to minimize political resistance to the legalization. If expungement is offered, it almost always limited to convictions for possession of less than one or two ounces, usually requires that no other criminal convictions be on record, and requires a waiting period (e.g., three years) following conviction before expungement can be requested.
Optimally, expungement should be done automatically, without effort from the individual with the record. Illinois included automatic expungement for previous convictions [of up to 30 grams (one ounce)] in their initial cannabis bill (HB1438, 2019), reportedly expunging almost 500,000 arrest records as well as 20,000 cannabis convictions pardons. Whereas New York state passed legislation (A. 2142 and S.3809) in 2019 automatically sealing low-level cannabis possession convictions for over 150,000 persons (while cannabis possession remained illegal/decriminalized), many cannabis-related arrests/conviction remained. In 2021, with the passage of cannabis legalization for adult use in New York, many other cannabis-related convictions (possessing up to 16 ounces of cannabis or selling up to 25 grams of cannabis) will be automatically expunged (NYCourts.gov, 2021).
However, the process of expungement often requires that the individual with the criminal record petition the courts. But this can be an expensive and time-consuming process and, in the end, may be denied. Thus, few petitions are submitted. Some states have gone the petition route and realized that more aggressive approaches were required. For instance, in California, while half a million people had been arrested for cannabis-related offenses over the past decade, less than 5200 applications were received thru 2018 to expunge these offenses ("Proposition 64 Data Summary Report,"). Thus, California hastened the expungement of cannabis-related offenses with The Cannabis Convictions: Resentencing bill ("Cannabis convictions: resentencing. Assembly Bill No. 1793,") in 2018. This bill required the California Department of Justice to review all state records and identify past convictions eligible for recall, dismissal, sealing, or re-designation. Prosecutors had up to a year to vacate the conviction or to reduce it from felony to misdemeanor. Unless challenged, the conviction was automatically reduced or dismissed.
· Any bill or ballot initiative legalizing cannabis should offer expungement for any cannabis-related offense that would no longer be illegal, including felony arrests and convictions.
· If expungement laws are not passed concurrently with cannabis legalization initiatives, expungement should be addressed in subsequent legalization.
· Expungement should be provided automatically (unless challenged by the prosecutor), without the need for a petition. Prosecutors should be provided resources to implement expungement. If a petition is required, the process should be simplified as much as possible and free-of-charge.
· Expungement should not be impeded by previous or subsequent arrests/convictions for non-cannabis-related charges. Waiting periods following an arrest or conviction for a cannabis-related offense should not be required.
· The success or failure of expungement is difficult to assess, particularly in jurisdictions that require a petition to be filed. The number of people eligible for expungement, the number of petitions filed, and the number of expungements granted should be monitored and publicly available. Since people of color have been subjected to arrests and convictions far more commonly than others, this data should include race/ethnicity of the those both eligible, applying for, and granted expungement.
ACLU. (2020). A tale of two countries: Racially targeted arrests in the era of marijuana reform.
Retrieved from https://www.aclu.org/sites/default/files/field_document/marijuanareport_03232021.pdf
Adinoff, B., & Reiman, A. (2019). Implementing social justice in the transition from illicit to legal cannabis. Am J Drug Alcohol Abuse, 45(6), 673-688.
Bloom, S. (March 17, 2021). 40,000-Plus cannabis prisoners in the U.S., LPP Confirms.
Retrieved from https://www.celebstoner.com/news/marijuana-news/2021/03/17/forty-thousand-american-cannabis-prisoners/
Cannabis convictions: resentencing. Assembly Bill No. 1793.
Retrieved from https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1793
NYCourts.gov. (2021). Cannabis (marihuana) and expungement under New York State law.
Retrieved from https://nycourts.gov/courthelp//criminal/marihuanaExpunge.shtml
Proposition 64 Data Summary Report.
Retrieved from www.courts.ca.gov/documents/Prop64-Filings.pdf