Why expungement and justice still lag behind legalization

Eaze Team
Feb 11, 2019

Editor’s Note: Eaze is celebrating Black History Month by supporting causes aimed at restoring equity in the industry and criminal justice system; with our first Black History & Cannabis event Feb. 27th; and by highlighting the voices and experiences of African-American leaders in the cannabis space. Here we examine the complex state of expungement in states that have legalized – and those working toward legalization.

Where there’s a will, there must be a way.

In the state of New Jersey, every leader in the Democratic Party’s many factions insist they want to legalize cannabis this year.

But in a state historically dominated by local bosses and special interests, broad-stroke agreement doesn’t mean much; party negotiations are fraught with competing quasi-public considerations. There is a long trail of significant sticking points behind any signing ceremony.

What is non-negotiable, however, is that any law ending marijuana prohibition will also have to address years of accumulated injustice. Clearing people’s criminal records is a good place to start, but it’s just the beginning of the work ahead to heal the wounds of the War on Drugs.

[SEE ALSO: The Year in Cannabis | Events that shaped a historic 2018]

New Jersey would become the 14th state to legalize cannabis, making it the second to do so via legislation, not a ballot initiative (Vermont was first). In the preceding states, legalization happened after intense campaigns largely focused on just that one aspect: forcing legislatures — some hostile to cannabis in the first place — to catch up fast with logistics and additional policy.

The difference in approach gives New Jersey the opportunity to pass a more holistic end to prohibition that also includes erasing the criminal records of those convicted of low-level possession.

“It would be real expungement,” Claude Brodesser-Akner, a political reporter for New Jersey’s Star Ledger and contributor to the paper’s Cannabis Insider newsletter, tells Eaze. “If you got caught with possession, the idea would be that it’s like it never happened.”

With pressure coming from the mayors of New Jersey’s two largest cities and the state’s sizable legislative Black caucus, some level of expungement seems inevitable. And once it’s enacted by lawmakers, the provision will significantly shift the debate on a question that has animated much activism and plenty of pushback: If something is no longer illegal, why should people continue to be punished for it?

Repairing the equity divide.

Now that widespread legalization has moved from long-term aspiration to eventuality, activists have started broadening their goals to better include what they call “reparative justice.” The War on Drugs wrecked communities and condemned generations of young people to limited futures with excessively harsh “tough on crime” policing and sentencing laws, with an overwhelming focus on people of color.

According to data compiled by the ACLU, non-whites are three times more likely to be cited or arrested for possession, resulting in people of color accounting for two thirds of state prison inmates incarcerated for marijuana-related crimes. This, despite an equal percentage of cannabis consumers within each population.

The goal of activists and social justice-minded legislators is to pass policies that would ameliorate these historic damages where possible, with criminal record expungement one of the major components of the package. According to Rodney Holcombe at the Drug Policy Alliance, which advocates for legalization and criminal justice reform, there are over 4,800 collateral consequences to carrying a felony conviction in California alone.

Many involve restrictions on employment, apartment rental, and loan eligibility, but a record impacts every element of a rehabilitated ex-felon’s life, down to one’s ability to accompany his or her child on a school field trip.

Without the backing of the business interests that stand to flourish from legalization, the road to expungement has been uneven at best. There are an array of challenges, both political and practical, that activists and lawmakers have faced in pursuing the policy after the end of prohibition.

California has been a trailblazer, from the initial successful medical marijuana ballot initiative in 1996, through full legalization for adult use in 2016. The 2016 initiative, Prop 64, also included a provision that allowed people to request erasure of criminal records. It had the potential to provide relief for up to 200,000 people, but as activists and experts discovered, the confusing rules, cumbersome process, and financial strain made for overwhelming barriers to utilization.

[SEE ALSO: Expungement Week | Cage-Free Cannabis fights for clean records]

“Folks who had prior convictions had to petition the courts on their own or to hire an attorney on their own, which is a very expensive thing, particularly for folks who’ve been convicted of crimes and may not have the resources to pay thousands of dollars to an attorney,” Holcombe explains. “So what we saw was that fewer than 10 percent of people in two years since Prop 64 passed actually petitioned for relief.”

The devil in the details.

Cities such as San Francisco and counties including neighboring Alameda responded by taking steps to automate record expungement, retroactively dismissing misdemeanor possession charges and giving a second look to felonies dating all the way back to 1975.

With help from the Drug Policy Alliance, the state followed the municipal lead and last fall passed AB 1793, which required the Department of Justice to identify past convictions that could be eligible for expungement; county prosecutors would then have an opportunity to object to dismissal. It’s a multi-year process, but the onus is on the government, not the individual, to navigate the system.

This is no small investment on the part of the state. As Brodesser-Akner points out, New Jersey’s creaky old computer system, as well as years of records that have yet to be digitized, are a significant hurdle to any sort of mass reversal. According to Steven Hawkins of the Marijuana Policy Project, the inadequacy of municipal computer systems and dearth of tidy recordkeeping threatens to keep even the most well-intentioned laws from actually being executed.

[SEE ALSO: Marijuana Policy Project | Meet the org that’s writing history in real-time]

As a civil rights lawyer who spent considerable time rifling through old police and court records, Hawkins suggests overhauling the system entirely.

“It may be that we have to be creative with policymakers and say, ‘OK, if this is the procedure that has existed on the books, let’s not feel wedded to it, let’s create another system,'” he tells Eaze. “My view is there should be weekend expungement where people have time to come and clear their records. There have been experiments like that around the country. It shouldn’t take someone six months to get expunged.”

But Hawkins and Holcombe are preparing to improve on a reality that has not even arrived yet in most states. Taken as a whole, nationwide expungement laws are a loose patchwork of half-measures and inconsistent objectives.

In 2014, legislators in Colorado, the first state to legalize marijuana for adult use, shot down a bill that would have sealed the records of people who had been convicted of small-scale possession. Now the mayors of Denver and Boulder have introduced initiatives to clear the records of people convicted of low-level possession prior to the 2012 legalization; in Denver, where expungement events start this weekend, it’s estimated that up to 13,000 people could potentially benefit, but because it will require convicts to apply themselves for the change, officials are anticipating much lower participation. The lessons of California were observed, but not acted upon.

That’s the case in just about every state with expungement laws. Eligible convicts are also forced to apply in Maryland, Vermont, Massachusetts, and Delaware (where possession is decriminalized).

In some places, the wait varies. While erasure for misdemeanor possession charges tends to not have a state-imposed delay, in Maryland, one must wait four years to apply for expungement for possession over 10 grams, while felony charges in Massachusetts require a seven-year freeze. In Missouri, where medical marijuana is now legal, the wait was recently slashed from 10 to three years.

In Washington, the rhetoric thus far has been exceedingly more progressive and than the actual policy changes. Gov. Jay Inslee, considered a potential presidential candidate, said last month that he would offer pardons to those with convictions for misdemeanor possession, but they had to be state charges; he couldn’t extend the offer to anyone with municipal convictions. The state estimates this could help about 3,500 people, which is a relative drop in the bucket. Nevada, meanwhile, is still just debating a bill that would seal criminal records for some misdemeanor marijuana crimes, not wipe them away entirely.

Tax revenue and paying for justice: a disconnect.

Legislators that claim to worry about the cost of upgrading computer systems and enacting automatic expungement are ignoring an easy solution, in part because it would cut into their true motivation for voting for the end of prohibition.

Marijuana is seen as a massive profit driver, as taxing it could fill in gaping holes in state budgets. Colorado has taken in nearly $1 billion since legalization in 2014. California made $82 million in taxes between January and June 2018, a number that came in lower than expectations due to taxes, the illicit market and kinks in the state’s supply chain.

But those figures should rise significantly over time, offering a tantalizing example for other states. There will be no shortage of interests looking for a piece of the pie, but advocates say that all the cashing in shouldn’t come at the expense of those who bore the brunt of prohibition for the last century.

“I would say let’s not put the onus on the person with the conviction, but let this be part of a creative use of this state’s tax revenue,” Hawkins suggests. “This can be part of what we call ‘justice reinvestment.’ The revenue that gets generated from taxes and fees, not all of that needs to go back into the state general fund.”

For Holcombe, expungement is one part of a larger campaign for reparative justice, an important first step in, if not righting past wrongs, at least creating a different future for those so long plagued by prohibition and its crippling ancillary effects.

“That tax revenue needs to be allocated for the social good so that the communities most impacted, communities that were heavily policed, and communities where arrests were highest,” he says, “are getting the job resources and the investment they need to really come back from what was a really violent War on Drugs that really yielded no results but to ruin communities.”

In New Jersey, the mayors of Newark and Jersey City, Ras Baraka and Steven Fulop, are making a hard appeal for reparative justice, promising to ban dispensaries in their cities should expungement be left out of the final legalization bill.

It’s a move that could well be copied by mayors across the country as more states legalize, ensuring a new wave of more equitable and fair laws.

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