Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, October 21, 2019

Effective review of latest marijuana offense expungement efforts

Polygon US Hex Map 2It has now been about 18 months since the publication of my Federal Sentencing Reporter article, "Leveraging Marijuana Reform to Enhance Expungement Practices," in which I sought to spotlight the importance of integrating marijuana reform efforts and criminal record expungement efforts.  At the time I wrote my article, it was relatively uncommon to see marijuana reform proposals expressly include record clearing provisions.   But, as is common in the marijuana reform era, times have changed quite quickly and now it is becoming much more common to see marijuana reform proposals with record clearing provisions. 

This lengthy new article in Law360, headlined "Turning Over A New Leaf: The Push To Nix Old Pot Convictions," spotlights the new momentum in this space.  Here are excerpts:

An estimated 800,000 residents in Illinois alone with marijuana-related convictions on their records.  Between 2001 and 2010, more than 8.2 million marijuana-related arrests were made across the U.S., 88% of which were for simple possession.... 

Those whose arrests led to convictions often find themselves barred from certain jobs, housing, government benefits and even their children's field trips.... While more states have moved to legalize pot, many of them have failed to make provisions to help people who still carry convictions for behavior that's now legal. 

However, an increasingly loud chorus of activists, lawmakers and some prosecutors are championing bills and even lawsuits to make sure some of those most hurt by prohibition don't get left behind when it ends.In some places, those efforts are making a difference.  New York state, for instance, said it will automatically expunge convictions for possession of 25 grams or less of marijuana as part of a decriminalization bill signed by the governor in July.

But opposition and inertia have stymied similar measures in a number of other jurisdictions, with critics saying avenues for expunging old convictions already exist and the new laws only serve to let people off the hook for activity that was illegal at the time....  "It's just unbelievable the kinds of things that people face even decades later from insignificant convictions," says Emma Goodman, a staff attorney in the special litigation unit of The Legal Aid Society who works to get criminal records sealed.

Since 2012, 11 states and the District of Columbia have legalized the recreational use of cannabis, according to the Marijuana Policy Project, while another 15 have decriminalized it, usually meaning possession of small amounts is treated as a violation of the law subject only to a fine rather than time in prison.  But while arrests have fallen in some places, that's little help to the many people convicted of marijuana-related crimes in years past.

Over the past four years, at least 15 states have enacted laws providing for the expungement of those convictions, according to the National Conference of State Legislatures.  Besides the expungement bill in New York, California is requiring its attorney general to review the cases of hundreds of thousands of people eligible to have convictions cleared as part of that state's marijuana legalization.
In Washington state, people with marijuana-related misdemeanors can go to court and apply to have those convictions vacated under a new law that went into effect in July.  "We had issues where people who when they were teenagers were caught smoking weed and now they have kids, and they're not allowed to go on a field trip with their kids because they had a marijuana conviction," says Democratic state Sen. Joe Nguyen, whose district includes West Seattle and who sponsored that bill....
Between 2001 and 2010, African Americans were 7.56 times more likely to be arrested for marijuana possession than whites in the Prairie State, according to the ACLU report.  As many as 770,000 records could be eligible for expungement under the new law, which grants automatic clemency to anyone convicted of possessing up to 30 grams of the drug, according to Democratic state Sen. Heather Steans, whose district includes part of Chicago and who is one of the bill's sponsors....
Activists are increasingly pushing for legalization bills "to have at least some racial justice lens and criminal justice lens" like Illinois', says Charlotte Resing, a policy analyst in the ACLU's National Political Advocacy Department. Resing's office has been working, along with a constellation of other groups, on advocating for the Marijuana Opportunity Reinvestment and Expungement Act, introduced in Congress in July by Sen. Kamala Harris, D-Calif., and Rep. Jerry Nadler, D-N.Y.

That bill would not only legalize marijuana nationally but require federal courts to expunge convictions, ban the denial of federal benefits due to a previous conviction, and make entry into the cannabis industry easier for those most impacted by the war on drugs. "We wanted some reinvestment in these communities that have really had their lives ... turned upside-down by an arrest, by overpolicing, by a conviction, by serving a sentence," Resing says....

For expungement advocates, changing the law is often not enough.  When California first legalized recreational pot in 2016, the referendum included an expungement provision.  But in early 2018, when now-former San Francisco District Attorney George Gascón asked how many of the more than 9,300 eligible people in the city had used the provision to escape what he calls the "paper prison," the answer was 23, according to Alex Bastian, deputy chief of staff in the San Francisco district attorney's office.   "The problem with the system in place is you would have to ... hire an attorney and pay for an attorney; you would also have to take time off from work and come in and do it yourself," Bastian says.

The San Francisco district attorney teamed up with technology nonprofit Code for America to develop a system to automatically expunge the marijuana convictions of those 9,300 people, a process his office completed in February.  In August, the district attorney of Cook County, Illinois, announced she would be partnering with Code for America to do the same.

Manhattan's district attorney, along with Goodman at the Legal Aid Society, is taking a different tack.  Frustrated with what Goodman calls "the arduous process of application-based sealing," they and a host of other organizations filed what they consider a "groundbreaking" class action in New York Supreme Court to get over 300 eligible marijuana convictions in Manhattan sealed all at once.   Justice Carol Edmead ordered the convictions sealed in July, and Goodman says her organization is looking at filing similar suits elsewhere.   "I really see sealing people's records and helping them with moving on with their lives as a way to counteract the systemic racism that still exists even decades later," Goodman says.

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