Criminal justice. Expungement Haze

• Author: Stephanie Zimmermann
• Pages: 16-17

CRIMINAL JUSTICE

Expungement Haze

Fairness is an issue in clearing low-level marijuana convictions

BY STEPHANIE ZIMMERMANN

In 2012, only two states, Wash-

ington and Colorado, allowed the

recreational use of marijuana for

adults. Just eight years later, mari-

juana laws are  ying high: Eleven states

have legalized recreational pot, and 33

states allow cannabis for medical use.

But as legalization speeds ahead at a

breathtaking pace, states are confront-

ing a fundamental issue of fairness: A

product that is now perfectly legal with-

in their borders is the same substance

that once brought criminal records and

even jail time.

That sense of inequity is placing

expungement programs on numerous

states’ legal agendas.

For many people—especially those

in black and brown communities hit

hard by the “war on drugs” of past de-

cades—old arrests and convictions for

minor amounts of pot are still haunting

them whenever they  ll out a job appli-

cation or apply for an apartment.

“Millions and millions of individu-

als have been arrested and have these

records following them for the rest of

their lives,” says Justin Strekal, political

director for the National Organization

for the Reform of Marijuana Laws.

Illinois was the  rst state to insert

expungement language in a statute

legalizing recreational use of cannabis

for adults. The Cannabis Regulation

and Tax Act passed in 2019. Some other

states have addressed expungement

after the fact. Illinois joins more than a

dozen states —some of which have le-

galized adult recreational use, all having

legalized medical use—that have passed

laws to expunge marijuana crimes.

In four states—California , Illinois ,

New Jersey and New York —expunge-

ment for minor pot crimes is automatic

under certain criteria, with the burden

falling on the state to make it happen.

In other states, the person with the

criminal record must proactively apply.

Several other states are considering

creating expungement programs for

past marijuana crimes, including Flori-

da , Michigan and Virginia.

Illinois as a case study

The Illinois law, which legalized the

sale of cannabis statewide as of Jan. 1

and sets aside retail licenses for people

affected by past punitive drug laws ,

requires the automatic expungement of

minor weed-related offenses . Those are

de ned as nonviolent crimes involving

the possession, manufacturing and dis-

tribution of less than 30 grams of pot.

People with an Illinois record for

possessing larger amounts of pot aren’t

eligible for automatic expungement, but

they may still petition courts to vacate.

“Illinois put a stake in the ground,”

says the state’s “cannabis czar,” Toi

Hutchinson. “You cannot talk about

the normalization or legalization of an

activity that is the exact same activity

that destroyed whole communities for

generations” without undoing some of

that damage, she argues.

Proponents say having a criminal

record for weed can prevent a person

National Pulse edited by

BLAIR CHAVIS

blair.chavis@americanbar.org

Photo illustration by Sara Wadford/Shutterstock

ABA JOURNAL | APRIL–MAY 2020

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