Imagine it is 2000 and a young college student named Adam is driving in a state where it is a crime to possess any usable amount of cannabis. The sun is beginning to set while Adam is driving home from a friend’s house. He purchased one ounce of cannabis, which he plans to use as a remedy for anxiety. He tucks the bag under the passenger seat. He is aware he is breaking the law by driving with an illegal substance, but he believes the medical benefits of the plant outweigh the risk. When he fails to signal a lane change on a nearly deserted road, a police officer notices and proceeds to pull him over.
January 15, 2021 Feature
High Time for Change: Cannabis Expungement Statutes
By Alana E. Rosen
When the police officer approaches Adam’s window, the police officer thinks she smells a faint, sweet odor. From years on the police force, she is familiar with the smell of cannabis, and she sees what she believes is a bag of cannabis sticking out from under the passenger seat. The police officer confiscates the bag, places Adam under arrest, and begins to read Adam his Miranda rights.
Following his arrest, Adam is charged with and pleads guilty to a felony for possession and intent to distribute. The judge grants Adam felony probation and sentences Adam to drug treatment counseling, community service, regular meetings with a probation officer, and random drug tests. Adam pays various court costs, probation fees, and fines. Because of his felony conviction, Adam loses his financial aid and cannot afford to attend the local university. He has trouble finding a job with a competitive salary. If Adam wants to clear his record, he must wait several years before he is eligible, but he is unsure about when or even how to file a petition with the court. Adam feels hopeless, believing his chances for a successful life are over.
Fast forward to 2014 in this same state. Through a voter initiative, cannabis is now legal and there are dispensaries where adults over the age of 21 can purchase cannabis. Nick is driving down the same road Adam was pulled over on 14 years ago. He has an ounce of cannabis that he purchased from a dispensary. On his way home, he fails to come to a complete stop at a stop sign. A police officer notices this and sounds her siren to pull Nick over.
When the police officer approaches Nick’s window, she can smell the faint odor of cannabis. The police officer has a flashback to several years ago when she would have confiscated the cannabis and arrested the offender. She no longer arrests individuals unless there are signs that the driver is impaired. Meanwhile, Nick is prepared to explain himself to the officer, but she tells him to be more careful and lets him go with a warning. Nick is shaken by the encounter, but he soon forgets about the traffic stop. Nick benefits from the state’s new legalization law, while Adam continues to suffer the consequences of the now repealed cannabis prohibition.
As states continue to legalize or decriminalize recreational cannabis, a chasm grows between the citizens in this country. One group of Americans can use cannabis without fear of prosecution under the new laws, while a second group continues to suffer the “collateral consequences” of previous cannabis-related offenses. In states that have legalized recreational cannabis possession and use, individuals with previous cannabis convictions for the same conduct still have criminal records. An individual with a criminal record may be unable to vote, serve on a jury, purchase a firearm, travel abroad, obtain a professional license, finance an education, access public housing,1 join the armed forces,2 and obtain a security clearance.3 In addition to the loss of liberty from the original drug offense, the individual still has to pay probation fees, fines, monthly drug tests, attorney fees, and court costs.4 A cannabis-related offense may even bar an individual from entering the burgeoning cannabis industry.5
Upon enacting a legalization or decriminalization statute, states should also include an expungement provision that automatically clears the criminal record of those individuals who engaged in activities that are now deemed legal under the new law. An expunged record allows individuals to obtain access to opportunities and benefits previously denied to them because of their criminal records. An expungement provision also benefits communities disproportionately targeted by the War on Drugs and cannabis prohibition.
Racial bias has played a significant role in the enforcement of cannabis prohibition. Black communities have been disproportionately targeted in the War on Drugs. In 2010, the American Civil Liberties Union reported that “a Black person was 3.73 times more likely to be arrested for cannabis possession than a white person. . . .”6 Today, despite the number of states that have legalized or decriminalized cannabis, Black people are still 3.64 times more likely to be arrested for cannabis possession.7 Cannabis use is comparable between white and Black communities, but Black people are disproportionately stopped by the police, frisked, and arrested for cannabis-related offenses.8
Not only have cannabis-related arrests and convictions barred individual access to basic rights, but they have also negatively impacted community growth and development. Economists predict the legal cannabis industry could generate $77 billion by 2022.9 In 2017, 4.3 percent of cannabis business owners were Black, while 81 percent of cannabis business owners were white.10 People of color might be reluctant to enter the industry because family, friends, or they personally have been adversely affected by the criminal justice system due to a cannabis offense. Cannabis expungement statutes can promote economic growth and community development in neighborhoods adversely affected by cannabis prohibition, as well as alleviate the stress of the individual-initiated expungement process.
The Expungement Process
The expungement process wipes clean an individual’s criminal record as if it never existed. Typically, the burden is on the individual to initiate the expungement process. Traditional expungement statutes require individuals to wait a number of years before they are eligible to expunge their records. Expungement can be costly due to filing, petition, and attorney fees. If individuals cannot afford an attorney, the process itself can be confusing to navigate alone.
As cannabis expungement statutes are introduced on a federal and a state scale, it is important to distinguish between two terms that are used interchangeably but are quite different: expungement and sealing. Expungement erases criminal history records, making information inaccessible because the record is destroyed, as if the crime never occurred. Sealing, however, does not erase records. Sealing prevents public access to criminal records, but the files continue to exist, and criminal justice agencies can access the information if necessary.
In an effort to expedite and restore the rights of individuals whose cannabis-related offenses are now considered legal, state governors are also mass pardoning minor cannabis convictions. Each state has a unique pardon system, and unless specifically granted, pardons do not ensure expungement or the sealing of criminal records. Local governments are also vacating and dismissing cannabis convictions that took place before legalization. Vacating a conviction means that the conviction is considered null and void, as if it no longer exists.
In the digital age, however, documents are eternally preserved despite sealing or complete destruction. Criminal records can live forever on the Internet. Commercial databases retain old files and records can appear on criminal background checks. If these records are flagged on employment background checks, employers must follow the guidelines outlined by the Fair Credit Reporting Act.11 For instance, hiring managers must first get the applicant’s written permission to conduct the initial background check, and, if adverse information is found, the applicant has the ability to review the report and provide an explanation.12 This process prevents employers from penalizing potential employees for criminal records that legally no longer exist.
Technology can improve an individual’s chance of expungement. Members of the tech industry are partnering with local governments to serve communities impacted by cannabis prohibition. Code for America, a technology nonprofit, developed technology that can automatically clear tens of thousands of eligible cannabis conviction records.13 Through the Clear My Record initiative, Code for America partnered with local governments in California and Illinois, clearing thousands of criminal records, providing relief to many constrained by the consequences of actions now legal.14 Clear My Record can be a resource for states that have legalized cannabis and want to automatically expunge cannabis-related offenses.
State Trends: Cannabis Legalization and Expungement Statutes
Fifteen states, the District of Columbia, and Guam have legalized cannabis for recreational use.15 Legalization occurs when an act (such as cannabis possession) once deemed criminal is made legal and can be conducted without fear of prosecution under civil or criminal law. In 2019, Illinois became the 11th state to legalize cannabis but the first state to include an expungement provision within its legalization statute: The Cannabis Regulation and Tax Act (CRTA).16 Enacted through the CRTA, the Cannabis Control Act (CCA) governs the expungement and pardon process for minor cannabis offenses committed before June 25, 2019.17 A minor cannabis offense involves no more than 30 grams of cannabis.18
Under the CCA, the Department of State Police reviews all records. The department must automatically expunge an individual’s criminal record of an arrest, a charge not initiated by arrest, an order of supervision, or an order of probation if one or more years have passed since the date of arrest if no criminal charges were filed, the criminal charges were subsequently vacated, or the arrestee was acquitted.19 The statute also provides for a pardon authorizing expungement. The department reviews eligible records and notifies the Prisoner Review Board, which makes a confidential and privileged recommendation to the governor as to whether he should grant a pardon.20 An individual’s criminal record may qualify for a pardon authorizing expungement if they have one or more convictions for minor cannabis offenses, there was no penalty enhancement, and the conviction was not associated with a violent crime.21 Since the CRTA was passed, Illinois Governor J.B. Pritzker has pardoned 11,017 individuals with minor cannabis offenses.22
If an individual’s record is not cleared through automatic expungement or a pardon authorizing expungement, the individual or a state’s attorney may petition the court to vacate and expunge a conviction for a misdemeanor or a Class 4 felony.23 Additionally, if a person was arrested before June 25, 2019, and the case is still pending, but there has been no sentence, the individual may petition the court to vacate and expunge the charges.24 The court will consider (1) “the reasons to retain the records provided by law enforcement,” (2) “the petitioner’s age,” (3) “the petitioner’s age at the time of the offense,” (4) “the time since the conviction,” and (5) “the specific adverse consequences if denied.”25 If an individual is incarcerated solely because of a minor cannabis offense, the individual is released once an order is issued under the CCA.26 The CCA is one of the most progressive expungement statutes in the country, and it will afford many individuals a clean slate.
Through the CRTA, the Illinois General Assembly promotes business ownership in areas that were adversely impacted by cannabis prohibition. The CRTA implements a social equity program that will offer support with license applications and financial assistance to those directly harmed by the War on Drugs, including those with prior cannabis convictions.27 According to Gov. Pritzker, “the defining purpose of legalization is to maximize equity for generations to come.”28 The Illinois statute can be a model for other states seeking to legalize or decriminalize cannabis.
State Trends: Cannabis Decriminalization and Expungement Statutes
While some states have legalized cannabis cultivation, distribution, possession, and use, other states have simply decriminalized some of these activities. Twenty-eight states, the District of Columbia, the Virgin Islands, and Guam have all passed laws to decriminalize cannabis.29 Some of these states still have penalties associated with possession, cultivation, and use. New York, for instance, decriminalized cannabis in 1977, but in July 2019, Governor Andrew Cuomo signed legislation reducing possession offenses.30
The purpose of New York Senate Bill 6579A is to “address a broken and discriminatory criminal justice process” and take steps toward equality. Now, possession of one ounce or less of cannabis is a violation with a penalty of no more than $50, and the possession of one to two ounces of cannabis is a violation with a penalty of no more than $200.31 The provision also provides for automatic expungement of cannabis-related offenses that occurred from 1977 to the present.32 Criminal records are conspicuously marked as expunged, but an individual must request for the records to be physically destroyed.33 New York senators are pushing to broaden the dates eligible for cannabis expungement. New York Senate Bill 8666, which is currently before the New York Assembly, would apply to cannabis-related convictions prior to 1977.34 New York’s expungement laws are restoring individual freedoms and reforming the criminal justice system.
Down the Pipe: Proposed Federal Cannabis Expungement Legislation
Federal cannabis expungement legislation may be on the horizon. On November 20, 2019, the House Judiciary Committee passed House Bill 3884, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act.35 On July 23, 2019, Senator Kamala Harris (D-Calif.) introduced the companion bill in the Senate.36 The bill decriminalizes cannabis, calls for the reinvestment in communities that have been disproportionately affected by cannabis prohibition, and creates an expungement policy for cannabis-related offenses.37 Decriminalization here means that cannabis would be removed as a Schedule I drug under the Controlled Substances Act, and states would independently determine how to reform cannabis laws.38 The MORE Act’s expungement provision allows individuals to treat a federal cannabis arrest, conviction, or juvenile delinquency adjudication as if it never occurred, and individuals no longer have to legally disclose the offense.39
The expungement provision of the bill requires “federal districts” to complete a comprehensive review and order expungement of arrests, convictions, or adjudication of juvenile delinquency for a federal cannabis-related offense on or after May 1, 1971.40 The bill also allows individuals who are not serving a criminal sentence to file a motion for expungement with the court, and if the individual is indigent, counsel is appointed.41 All records will be sealed and will only be made available by court order.42 An individual with a criminal sentence for a federal cannabis offense can file a motion with the court that imposed the sentence for a sentence review hearing.43 The court can sua sponte conduct a sentencing hearing as well.44 If the ruling is in the individual’s favor, the sentence is vacated and the records sealed.45
The MORE Act also proposes an Equitable Licensing Grant Program, which would provide funding to eligible state or local governments to develop a licensing program for an “individual most adversely impacted by the War on Drugs.”46 The act defines an “individual most adversely impacted by the War on Drugs” as one (1) whose income falls below 250 percent of the federal poverty level for at least 5 of 10 years and (2) who has been arrested or convicted for the sale, possession, use, manufacture, or cultivation of cannabis or a controlled substance, or who has had a parent, sibling, spouse, or child arrested or convicted of an offense.47 If passed before the end of 2020, the MORE Act will not only allow individuals and communities to begin repairing the effects of cannabis prohibition, but they will have access to the legal cannabis industry with the support of the federal government. Because federal legislation is uncertain, state legislators and voters will continue to determine the future of cannabis reform.
Down the Pipe: Proposed State Legislation
Minnesota legislators attempted to introduce cannabis legalization legislation that promotes social equity and criminal justice reform. Before Minnesota’s 91st Legislative Session ended on May 18, 2020, House Majority Leader Ryan Winkler introduced House Bill 4632, legislation that provides a comprehensive plan for cannabis legalization, social equity programs, and expungement.48 The bill calls for automatic expungement of minor cannabis offenses, although expungement here means sealed and not destroyed.49 A unique aspect of H.B. 4632 is the creation of an independent board to review felony cannabis offenses. The bill proposes a Cannabis Expungement Board composed of a judge, an attorney general, a public defender, a commissioner of one department of the state government, and one public member with experience as an advocate for victim’s rights.50 The board would review records and determine whether the offense is now considered legal, and whether the records should be sealed or the defendant resentenced to a lesser offense.51 The board would also take into consideration whether the offense involved a deadly weapon or infliction of bodily harm on another.52
House Bill 4632 also calls for the creation of the Office of Social Equity that would administer grants and services to communities disproportionately impacted by cannabis prohibition, promoting economic development.53 Individuals with prior cannabis convictions would not be disqualified from entering the legal cannabis industry.54 In the wake of 2020’s civil rights movement, the passage of this Minnesota legislation could be a significant step toward justice and equality.
Conclusion
As states continue to legalize or decriminalize cannabis, it is unfair for one segment of the population to possess and use cannabis without fear of prosecution under the new laws, while another group continues to live with the collateral consequences of previous cannabis convictions. Some critics argue that if an individual committed an illegal crime, then they should do the time. But state legislatures should ask why their citizens continue to be punished under laws that have been repealed. A large majority of Americans support cannabis legalization and decriminalization because they believe law enforcement should focus on more serious crimes to person and property. Americans voting on these laws believe they should also have the individual freedom to use and possess cannabis if they are 21 years of age or older. These same freedoms should be extended to those who are unable to live full lives because of actions that were considered illegal under the old laws. Cannabis-specific expungement statutes will allow individuals, like Adam, to start fresh, and they will create a more just society as cannabis policies in this country continue to change.
Endnotes
1. Douglas Berman, Leveraging Cannabis Reform to Enhance Expungement Practices, 30 Fed. Sent’g Rep. 305, 305–07 (Apr./June 2018).
2. 10 U.S.C. § 504(a); 32 C.F.R. § 66.7(a)–(b).
3. 50 U.S.C. § 3343(c)(1); U.S. Dep’t of Def., Manual 5200.02, Procedures for the DOD Personal Security Program (PSP), app’x 7B, ¶ 7B.3 (Apr. 3, 2017).
4. Michelle Alexander, The New Jim Crow 154–57 (2d ed. 2012).
5. See Alaska Admin. Code tit. 3, § 306.010(d)(1)–(2) (West 2020) (providing that a license will not be issued if the applicant has been convicted of a felony or a misdemeanor that involved a controlled substance).
6. ACLU, The War on Cannabis in Black and White: Billions of Dollars Wasted on Racially Biased Arrests 9 (2013).
7. ACLU, A Tale of Two Countries: Racially Targeted Arrests in the Era of Cannabis Reform 7 (2020).
8. Id. at 12.
9. Pat Evans, 8 Incredible Facts About the Booming US Cannabis Industry, Markets Insider (May 7, 2019, 4:01 PM), https://markets.businessinsider.com/news/stocks/weed-us-cannabis-industry-facts-2019-5-1028177375#.
10. Morgan Sung, The Legal Cannabis Industry Must Reckon with Systemic Racism, Mashable (July 8, 2020), https://mashable.com/article/cannabis-weed-systemic-racism-black-lives-matter.
11. Background Checks: What Employers Need to Know, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/background-checks-what-employers-need-know (last visited Sept. 3, 2020, 3:43 PM).
12. Id.
13. Clear My Record, Code for Am., https://www.codeforamerica.org/programs/clear-my-record (last visited Sept. 17, 2020).
14. Id.
15. Jay Cannon, These States Legalized Recreational Marijuana on Election Day, USA Today (Nov. 5, 2020, 11:26 AM), https://www.usatoday.com/story/news/politics/elections/2020/11/04/recreational-weed-legal-arizona-new-jersey-south-dakota-montana/6160708002.
16. 410 Ill. Comp. Stat. 705 (West 2020).
17. 20 Ill. Comp. Stat. 2630/5.2 (West 2020).
18. Id. § 5.2(a)(1)(G-5).
19. Id. § 5.2(i)(1)(A)(i)–(ii).
20. Id. § 5.2(i)(2)(A), (B)(i)–(iii).
21. Id. § 5.2(i)(2)(A)(i)–(iii).
22. Elvia Malagón, On Eve of Legal Recreational Pot Sales in Illinois, Gov. J.B. Prtizker Pardons More Than 11,000 People with Weed Convictions, Chi. Trib. (Dec. 31, 2019, 3:57 PM), https://www.chicagotribune.com/marijuana/illinois/ct-jb-pritzker-marijuana-pardons-20191231-ka24pnnrfzfn5hmyzodwsshs74-story.html.
23. 20 Ill. Comp. Stat. 2630/5.2(i)(3)–(4).
24. Id. § 5.2(i)(6).
25. Id. § 5.2(i)(3), (6).
26. Id. § 5.2(i)(7).
27. 410 Ill. Comp. Stat. 705/7-1(g)(h).
28. Malagón, supra note 22.
29. 50-State Comparison: Cannabis Legalization and Expungement, Restoration of Rts. Project, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-cannabis-legalization-expungement (last updated July 2020).
30. N.Y. Penal Law § 221.00 (McKinney 2020); Press Release, Governor’s Press Office, Governor Cuomo Signs Legislation Decriminalizing Marijuana Use (July 29, 2019).
31. N.Y. Penal Law §§ 221.00, 221.05, 221.10.
32. Id. §§ 160.50(5), 221.00.
33. Id. § 160.50(5).
34. S. 8666, 242d Leg., 2020 Sess. (N.Y. 2020).
35. Press Release, House Comm. on the Judiciary, House Judiciary Passes MORE Act to Decriminalize Cannabis at Federal Level (Nov. 20, 2019).
36. Marijuana Opportunity Reinvestment and Expungement (MORE) Act, S. 2227, 116th Cong. (2019).
37. Id.
38. Id. § 2(a)(2).
39. Id. § 9(c)(1)–(2).
40. Id. § 9(a)(1).
41. Id. § 9(a)(3).
42. Id. § 9(a)(4).
43. Id. § 9(b)(1)–(2).
44. Id.
45. Id. § 9(b)(2)(A)–(C).
46. Id. § 5(b)(2).
47. Id. § 5(b)(3)(i)–(ii).
48. H.F. 4632, 91st Leg., Reg. Sess. (Minn. 2020).
49. Id. art. 6, § 4.
50. Id. § 5(1)(b)(1)–(5).
51. Id. § 5(1)(c)(1)–(3).
52. Id. § 5(2)(a)(1)–(2).
53. Id. art. 1, § 2(11)(1)–(3).
54. Id. § 17(1)(a).