Feds & States demonstrate paths to expungement of marijuana charges

As the rest of the world slowed down in the face of the Covid-19 pandemic, efforts for justice over marijuana convictions persevered throughout 2020 and 2021, and into 2022. While safe, effective legalization continues in importance, it’s equally vital to recognize some of the most critical fights: expungement of marijuana convictions.

From 2020 to 2022, many states saw notable advances in the expungement of unjust marijuana cases, particularly in major states such as New York, New Jersey, Oregon, Illinois, Arizona, and Vermont. These expungements have made obtaining employment and fair housing easier for hundreds of thousands of citizens.

The legislation included legalizing recreational marijuana and in the same step, included the automatic expungement of broad array of past convictions relating to marijuana. What’s more, these states saw varying degrees of social equity provisions, providing additional resources to support those convicted of past marijuana offenses.

New Jersey

The Marijuana Decriminalization Law took effect July 1, 2021, and required the expungement of certain marijuana and hashish cases in the state, primarily low-level distribution and possession cases. While the parameters may seem narrow, this law resulted in expunging over 362,000 marijuana and hashish cases.

Additionally, the state has taken additional measures to inform those convicted of these past crimes that they are no longer on record, and are not required to be reported on employment or rental applications. The outreach will include billboards, radio and bus ads, which was required by the laws signed by Gov. Phil Murphy in February.

New York

Across the Hudson, New York state has similarly made steps to seal records of previous marijuana convictions.

According to the state, “Approximately 203,000 marijuana related charges are presently being suppressed from background searches and in process to be sealed or expunged,” which adds to the “approximately 198,000 sealing accomplished as part of the first round of marijuana expungements for the 2019 expungement legislation.” For New York, this is a major shift from its decades long history of leading the nation in low-level criminal prosecutions for marijuana.

Still, however, activists argue that the state’s action of sealing records does not go far enough, and complete expungement is the goal. Unlike expungement, which physically and digitally destroys the records, sealing a record means it still “exists” in both a legal and physical sense. And for some, despite the state’s re-entry program providing marketable skills, employment discrimination and the conditions of probation may can prevent them from re-entering the workplace.

Oregon

In November 2022, Governor Kate Brown announced the state would be pardoning over 47,000 people convicted of marijuana possession. “No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana — a crime that is no longer on the books in Oregon,” stated Governor Brown, who also waived roughly $14M in fines and fees. The Oregon Judicial Department will act to seal all records associated with these pardoned offenses.

As with other states, the sealing of these records will remove barrier of entries for employment, housing and educational opportunities.

New Mexico

In 2021, New Mexico lawmakers legalized the use and sale of recreational cannabis. Accompanying this bill was was a mechanism to automatically expunge past marijuana convictions, specifically records that are for crimes no longer illegal under the new marijuana law.

It’s important to note that in this expungement effort, district attorneys have the ability to challenge expungement. In Bernalillo County, home 2nd Judicial District Attorney’s office, spokesperson Lauren Rodriguez stated that the office had reviewed over 11,527 cannabis-related cases potentially eligible for automatic expungement. As of August 2022, the office had challenged just 53 expungements, which “amounts to an objection rate of 0.45%,” said Rodriguez.

Virginia

Also in 2021, Virginia passed an expungement law, House Bill 2113. This law makes expungement automatic in some cases, and expands expungement eligibility in other cases. As of October 2021, state officials have sealed nearly 400,000 marijuana-related criminal records, according to data provided by the state’s Cannabis Oversight Commission.

Illinois

In December of 2020, Governor J.B. Pritzker of Illinois announced the expungement of over 500,000 marijuana cases. Of these expungements, over 492,000 were non-felony-related charges. DuPage, Kane, Knox, Lake, McHenry, McLean, Peoria, Rock Island, Will, and Winnebago counties have completely cleared citizens of minor marijuana charges. All other counties are under a four-year time limit expunge theirs as well.

As marijuana became legal for sale in Illinois, it became more evident that the war on drugs was also a war on minorities. Before this mass pardon, the same people who had been most disadvantaged by the stigma around marijuana growth and usage were now unable to profit from the now-legal plant.

Criminal convictions of any sort are enough to stand between someone and their dream of opening a legal marijuana dispensary. In most states, anyone who had once been charged with the possession of marijuana illegally would have been unable to legally distribute the same drug.

Expungement involves more than complete forgiveness; it represents a changing of state-wide attitudes toward marijuana usage. In issuing these pardons, the governor gave a message, gracefully admitting the injustices inherent in the original criminal charges. In the growing city of Chicago, thousands are free to operate a business, seek promotion, and seek housing free of stigma.

Vermont

In October of 2020, Governor Scott signed Act 167 into law. As a result, high expungement fees can now be waived by the court, and those charged with marijuana growth are free to seek expungement of criminal charges. Best of all, those who had been suffering under the effects of old charges are automatically cleared, leaving them able to state that they hold no criminal record.

While Vermont is not necessarily a heavily populated state, the expungement efforts demonstrated here go far in correcting the devastating problems that old marijuana charges can have on an individual’s life.

One such individual identified here as “Micheal” knows those effects too well.

After struggling with kidney disease and his high-stress military position, Michal turned to marijuana under the advice of a nurse to relieve his intense nausea. Not wanting to pursue the still illegal substance in his home state of Virginia, he requested that a family member purchase the substance for him legally in another state.

Despite his efforts, police tracked the package to Micheal and arrested him. They quickly charged him with felony possession and intention to distribute it in 2015. Officially labeled a criminal by the State of Virginia, Micheal was unable to advance in his job.

Others with this stigma have faced similar challenges, being denied promotions, housing, and even the dignity of a side-hustle through services such as Uber or Lyft.

Under act 167, people like Micheal have been given a new sense of hope. Though felony charges still require people to jump through hoops to have their records cleared, the door has been opened for thousands of others to find immediate relief.

Arizona

In November of 2020, voters passed the Smart and Safe Act, officially legalizing adult use of marijuana and allowing those who had previously been convicted of marijuana charges to apply for expungement.

When states issue automatic forgiveness of marijuana charges, the burden is placed on the same government entities who initially set the charge. Typically, the counties or states are given a deadline by which they should complete all the expungements. Those relieved are later informed via a certificate or mailed notification.

In cases such as Arizona’s, the burden is placed on those who received the charge. These victims are responsible for researching whether their charges are available for expungement and then filling applications. Frequently, this process requires the use of an attorney, resulting in further fees. After applying, these citizens officially enter the court system, which requires them to wait as the County Attorney’s office prioritizes cases. As of September 2021, roughly 10 months into the program opening, just 3600 petitions had been received.

While the system Arizona has implemented is undoubtedly flawed, the swift action with which the state acted is significant. In allowing for the expungement of marijuana charges in the same step as legalizing the substance, Arizona voters state that no one should thrive under the same system that only days ago disadvantaged others.

Federal Marijuana Expungements

In October of 2022, President Joe Biden also announced thousands of federal convictions for ‘simple possession of marijuana’ would be expunged. In a statement, Biden stated that “no one should be in jail just for using or possessing marijuana” and that “too many lives have been upended because of our failed approach to marijuana.” To Biden, it was time that the federal government begin to “”right these wrongs.”

The impact of expungement

The expungement of unfair marijuana charges has the potential to change the lives of hundreds of thousands of Americans. As advocates continue to fight for the legalization of marijuana, they should not forget those who currently stand disenfranchised by the previous system. Under the ideal design, expungement should be immediate and automatic for anyone who works or lives under the stigma of an old marijuana charge.