THE LINGERING STENGH OF MARIJUANA PROHIBITION: PEOPLE WITH POT RECORDS CONTINUE TO SUFFER, EVEN IN PLACES WHERE THEIR CRIMES ARE NO LONGER CRIMES.

• Author: Sullum, Jacob

FRANKLIN ROOSEVELT, WHO took office in the final year of Prohibition, issued some 1,300 pardons for alcohol-related offenses during his first three terms. As a 1939 report from the Justice Department explained, "pardon may be proper" in light of "changed public opinion after a period of severe penalties against certain conduct which is later looked upon as much less criminal, or as no crime at all." The report cited Prohibition as "a recent example."

That logic made sense to governors as well. When Indiana repealed its alcohol prohibition law in 1933, Gov. Paul McNutt (D) issued pardons or commutations to about 400 people who had been convicted of violating it. "If these men were kept in prison after the liquor law is repealed," he said, "they would be political prisoners."

Alcohol prohibition lasted 14 years. Marijuana prohibition has been with us almost six times as long. Police have arrested people for violating it about 20 million times in the last three decades alone. Many of those people were ultimately convicted of felonies that sent them to prison, although the vast majority were charged with simple possession and spent little or no time behind bars. Either way, marijuana offenders have had to contend with the lingering effects of a criminal record, which can shape people's lives long after they complete their sentences.

Depending on the jurisdiction and the classification of the offense, people who were caught violating marijuana laws may lose the right to vote, the right to own a gun, the right to drive a car (for up to a year), the right to live in the United States (for noncitizens), and the right to participate in a wide variety of professions that require state licenses. They may find it difficult to get a job, rent an apartment, obtain student loans, or travel to other countries. They may even be barred from coaching kids' sports teams or volunteering in public schools.

The employment consequences can be explicit, as with state laws that exclude people convicted of felonies from certain lines of work, or subtle, as with private businesses that avoid hiring people who have criminal records, possibly including arrests as well as convictions, because of liability concerns. "There is no limit to how much you can discriminate against a person with a criminal record," observes Douglas Berman, a sentencing expert at The Ohio State University's Moritz College of Law.

Such ancillary penalties seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use. In those places (which so far include 10 states, the District of Columbia, and the Northern Mariana Islands), people convicted under the old regime continue to suffer for actions that are no longer crimes.

California has gone furthest to address that problem. The state's 2016 legalization initiative authorized expungement of marijuana records, and a 2018 law will make that process easier. Demanding expungement as a remedy for injustice, activists in California emphasized the racially disproportionate impact of the war on weed: Black people are much more likely to have pot records than white people, even though they are only slightly more likely to be cannabis consumers.

Other states offer various forms of relief, ranging from generous to nearly nonexistent. All of them put the onus on prohibition's victims to seek the sealing or expungement of their criminal records, a process that can be complicated, expensive, and time-consuming.

"Very few people have actually taken advantage of that," notes Margaret Love, a former U.S. pardon attorney who is the executive director of the Collateral Consequences Resource Center. "As long as people have to actually go into court, they're probably not going to do it."

Berman argues that expungement of criminal records related to conduct that's no longer illegal should be automatic. "If our moral view of the behavior has changed," he says, "the default ought to be that we undo any past criminal consequences."

Love notes that the relief available to people with criminal records varies widely from state to state, even when it goes by the same name (e.g., sealing or expungement). Generally speaking, "expunged" records are not actually erased, and "sealed" records are still visible to certain agencies or for certain purposes. Arrests and convictions may linger in private databases used by employers and landlords even if the general public cannot see the official records. Depending on the state, a pardon from the governor may or may not result in expungement.

At the federal level, there is no expungement process. A pardon from the president restores certain rights, such as the right to own a gun, but does not eliminate the offender's record.

"It's really, really hard to make something disappear," Love says. "People don't see collateral consequences as part of the sentence, but they certainly are part of the punishment. How can you serve your sentence? How can you pay your debt to society? It borders on immoral to have a system of punishment that offers no way out, that never ends."

People with marijuana records are looking for a way out in every state that has legalized recreational use, as the stories below show.

ALASKA

Legalization approved: 2014

Who approved it: voters (Ballot Measure 2)

What's legal: public possession of up to an ounce, commercial production and distribution, home cultivation of up to six plants (no more than three of them mature)

'TREATED LIKE CRIMINALS'

CHARLO GREENE, AN Anchorage TV reporter who famously quit on the air in 2014 after revealing that she was the founder of the medical marijuana club she had just described to viewers, may have invited more attention than she ultimately wanted. In March 2015, four months after Alaskans voted to legalize marijuana but a year and a half before the first state-licensed pot shop opened, police raided her Alaska Cannabis Club.

Greene, whose legal name is Charlene Egbe, had been operating the club in a legal gray area created by the medical marijuana initiative that Alaska voters approved in 1998. State prosecutors, who accused her of 10 felonies and four misdemeanors, did not agree with her reading of the law.

In 2016, Egbe moved to Los Angeles, where she began hosting an online series called The Weed Show With Charlo Greene and founded a company that sells a cannabis-infused topical cream. Her case dragged on until September 2018, when Egbe pleaded guilty to a single felony count of misconduct involving a controlled substance. Under the plea deal, Egbe agreed to pay a $10,000 fine and forfeit property seized in the raid, but she will not serve any time. The felony conviction bars her from owning guns or participating in Alaska's newly legal cannabis industry.

On her show in May 2017, Egbe expressed dismay at being prosecuted even after Alaskans approved legalization. "They need to fucking stop," she said. "That's why we voted to change the law in the first place." While the criminal case was not an obstacle to starting a marijuana business in California, "there's always that cloud that kind of follows everything that I do."

Someone in Egbe's position has no realistic hope for relief under current Alaska law, which does not allow sealing or expungement of valid convictions. A pardon from the governor, while it does not expunge a criminal record, removes legal disabilities such as loss of gun rights and automatic exclusion from state-licensed professions. But only three pardons have been granted since 1995, and none has been granted since 2006. A new clemency process was implemented in 2018, requiring people who had previously sought pardons to file new applications.

In 2018, state Rep. Harriet Drummond (D-Anchorage) introduced a bill that would have removed the conviction records of people caught with less than an ounce of marijuana from the Alaska Court System's publicly accessible online database. Noting the bill on her show last March, Egbe observed that "of course people will want it removed from their records, so they can get jobs and live their lives without being treated like criminals."

From 2007 through 2017, there were more than 700 convictions that would have been covered by Drummond's bill, which did not get a floor vote. Patrick Fitzgerald, Drummond's legislative aide, says even such petty convictions can block promotions, doom university applications, and boost insurance premiums and interest rates on loans.

"Alaskans who've been convicted should not be passed up for employment opportunities or career advances for possessing something that is now legal," Drummond said when she introduced her bill. She said she wanted to "eliminate a barrier that has kept people from achieving their full potential and open new opportunities for those who may have been limited because of their record."

CALIFORNIA

Legalization approved: 2016

Who approved it: voters (Proposition 64)

What's legal: public possession of up to an ounce, home cultivation of up to six plants, commercial production and distribution

'A BLOW TO THE STOMACH'

GROWING UP IN the public housing projects of San Francisco's Hunters Point neighborhood, Rodney Hampton started selling marijuana for pocket money at 13. Just before his 19th birthday in 1991, he was busted with a bunch of dime bags, totaling a little more than an ounce.

After a day in jail, Hampton got a lecture from his mother, who had to remove his name from the lease to avoid eviction. He applied for jobs at fast food restaurants where the supervisors seemed impressed that he was trying to turn his life around but nevertheless said it was against policy to hire anyone with a drug record. "That was kind of a blow to the stomach," he says.

Thanks to the intervention of his mother and a couple of benefactors at the Omega Boys Club, Hampton managed to avoid any more time behind bars and enroll at Alabama State University, notwithstanding his 1.6 GPA...