Public attitudes toward marijuana have changed dramatically since the counterculture days of the 1960s and 1970s when it was regarded as a “gateway” to more serious drug abuse. Today, marijuana (also known as cannabis) is widely seen as relatively benign and is used by many to ease chronic pain. Many states have moved to decriminalize the use and possession of cannabis. Nonetheless, too many Americans, especially from minority and low-income communities, still are burdened with criminal records from marijuana arrests and convictions.
That needs to change. As more states legalize the recreational use of marijuana, they should also expunge past marijuana convictions. Colorado and Washington were the first two states to legalize the Schedule 1 drug for recreational and medical use. Since then, 37 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands have followed suit with laws allowing legal possession and use of marijuana. Taxes on cannabis sales are becoming a lucrative source of revenue for states.
As of 2020, about 40,000 Americans are burdened with marijuana-related convictions. State and federal lawmakers shouldn’t ignore the lingering damage past marijuana policies have inflicted on individuals. According to a report by the ACLU, marijuana-related arrests still account for over half of all drug arrests in the United States. There were over eight million between 2001 and 2010, with Black Americans 3.64 times more likely to be arrested for possession than Whites in every state, including those that have legalized the drug.
Based on the numbers provided by the ACLU, there were around 820,000 arrests annually between 2001 and 2010 and only 6% of those arrests led to a felony conviction for marijuana. The rest are misdemeanor charges which result in fines or probation. Whether or not it leads to prosecution or conviction, the arrest stays on an individual’s record. Having a marijuana arrest on record means the information is available for anyone to look up. Having prior marijuana convictions is a serious obstacle for people seeking jobs, education and training opportunities, and changes in immigration status. Even misdemeanor convictions can make it difficult for people to get driver’s licenses, qualify for insurance policies or apply for bank loans. Felony convictions restrict or limit certain rights such as professional licensing, voting, or receiving government assistance.
Expunging a conviction means that an individual’s case is vacated, dismissed, and “deemed a nullity” in any law or criminal records. When someone’s case is expunged, their past conviction will not appear on any public record and background check. States such as Colorado, Maryland, New Hampshire, and Oregon are allowing automatic expungement and for people to expunge their past marijuana convictions.
Guidelines for expungement differ state-by-state. Illinois legalized the recreational use of marijuana and provided the eligibility status for which individuals can apply for expungement. The act created three groups of marijuana-related records eligible for expungement. The first two groups are eligible for automatic expungement if arrests for possession were under 30 grams or less, while the third group requires a court petition to start the expungement process for possession up to 500 grams. New York’s legislation provides for automatic expungement with additional protection against discrimination in voting, housing, student loans, employment opportunities, and other vital services.
Federal marijuana trafficking cases continued to decline in 2020, according to the U.S. Sentencing Commission. There were only 1,118 such cases reported in 2020, marking a 67% decrease since 2016. The FBI’s Uniform Crime Report in 2020 revealed a decline in the number of marijuana-related arrests with a 36% decrease from 2019; these arrests were primarily made in states where possession remains criminally outlawed.
On the federal level, Rep. Jerry Nadler (D-N.Y.) introduced the MORE (Marijuana Opportunity Reinvestment and Expungement) Act of 2021. The proposal would: (1) remove marijuana from the list of federally controlled substances, (2) reinvest in communities and people based on cannabis arrest/conviction records, and (3) provide for the expungement of federal marijuana convictions and arrests.
In 2021, Senate Majority Leader Chuck Schumer (D-N.Y.) also proposed a draft of the Cannabis Administration & Opportunity Act (CAOA). Measures in the draft include descheduling cannabis and allowing states to continue to set their own cannabis laws. The discussion draft provides guidelines for the expungement of certain cannabis criminal offenses and prohibits federal agencies from denying a security clearance, federal benefits, and immigrant status based on past or present marijuana use.
Expunging marijuana-related convictions is a logical complement to the national drive to legalize cannabis use. The federal government cannot mandate state expungement, but it can set an example and offer federal funding to help states purge old convictions from legal records.
