Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, September 2, 2019

How could and should we track and assess the impact of many thousands of marijuana conviction expungements?

The question in the title of this post is prompted by this recent New York Times article headlined "About 160,000 People in New York to See Their Marijuana Convictions Disappear."  The article come on the heels of news of significant expungements in other big  states like California and Illinois.  Here are some excerpts from this piece:

Even as states across the country have legalized marijuana, potentially opening the door to a multibillion dollar industry, the impact of marijuana criminalization is still being felt by people — mostly black and Hispanic — whose records are marked by low-level convictions related to the drug.

But on Wednesday, New York began the process of expunging many of those records, as part of a new state law to reduce penalties associated with marijuana-related crimes, a spokesman for Gov. Andrew M. Cuomo confirmed. “For too long communities of color have been disproportionately impacted by laws governing marijuana and have suffered the lifelong consequences of an unfair marijuana conviction,” Mr. Cuomo said in a statement.

Under the new law, which was passed in June and took effect on Wednesday, about 160,000 people with marijuana convictions in the state will have those convictions cleared from their record, according to a spokeswoman for the State Division of Criminal Justice Services.

Of those people, 10,872 people with convictions in New York City will have no criminal records in the state, the spokeswoman said.  In the rest of the state, an additional 13,537 people will have no criminal records in New York once these convictions are wiped from their record, the spokeswoman said.

Sealing these records would ensure that a person’s marijuana-related conviction would not come up in most background checks, state officials said.  A method for expunging the records, which has never been done in New York, is still being developed, the officials said.  The process could take up to a year, a spokesman for the State Office of Court Administration, Lucian Chalfen, said.

The Drug Policy Alliance, a nonprofit group, said the number of people who would have their records cleared could be many times higher than the number cited by the state; the alliance cited figures showing that between 1990 and 2018, 867,701 arrests were made in New York State for low-level marijuana offenses....

The move to reduce fines and clear people’s records has been embraced by advocates of criminal justice reform, many of whom said criminal penalties for using marijuana fell disproportionately on black and Hispanic residents....

In February, a study from John Jay College found that “blacks and Hispanics consistently had higher rates of arrest for misdemeanor marijuana possession compared to whites.”

Kevin Sabet, director of Smart Approaches to Marijuana, an advocacy group, said he embraced expunging low-level offenses, but not full legalization.... Mr. Sabet said he wanted to see marijuana possession likened to driving over the speed limit. “It’s something discouraged,” he said, “but it’s not something that is going to destroy your life if you’re caught doing it.”

The data in this article indicates that the vast majority of New Yorkers who will benefit from marijuana expungement will still have criminal records because of other convictions. I cannot help but wonder if and how expungement of marijuana convictions for these individuals will prove as beneficial as it might to the smaller number of persons who will have an entirely clean record following expungement of marijuana convictions.  In addition, the Drug Policy Alliance here spotlights that the number of persons with marijuana arrest records is much higher than the number of persons with marijuana convictions.  It is unclear whether and how arrest records will be addressed and whether and how the arrest/conviction difference may shape the impact of a expungement.  Put another way, this article indirectly highlights how many questions necessarily arise in conjunction with bold expungement efforts.

In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I make the case for using marijuana revenues to help build an institutional infrastructure for helping to remediate the various harms from the war on drugs.   I believe something like a "Commission on Justice Restoration" is so badly needed because it is essential for expungement efforts and other like reforms to be followed by research to assess exactly which policies and practices are most effective at minimizing and ameliorating the undue collateral consequences too often faced by people with criminal convictions.  To date, there is very little empirical research on expungement programs and their impact (though the leading research is generally encouraging).  With so much activity now in this space thanks to marijuana reform, I think we really need a research program that tries to keep up with policy developments so that we can best identify and replicate best practices.

https://lawprofessors.typepad.com/marijuana_law/2019/09/how-could-and-should-we-track-and-assess-the-impact-of-many-thousands-of-marijuana-expungements.html

Criminal justice developments and reforms, Race, Gender and Class Issues | Permalink

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