Photo: Михаил Руденко - Getty Images
Suspect with hands up in headlights
As marijuana legalization sweeps across the nation, the issue of expungement and pardons is becoming more urgent every day. Two arms of the United States government are tasked with solving the problem of past convictions for an offense that is quickly becoming legal. Lawmakers introduced the Marijuana Misdemeanor Expungement Act, while President Joe Biden claims he is “evaluating” future executive actions.
The problem that needs to be solved is as follows: Every year, U.S. law enforcement arrests more people for minor marijuana offenses than for all violent crimes combined, and a large portion of those arrests blossom into charges and incarceration for owning what is now legal in 38 states medically and 19 states recreationally. In those states, people convicted of past marijuana offenses can often find themselves trapped—marijuana is now legal, so the offense they committed is not an offense anymore today, yet their judicial records still remain tainted. Because they have a record, it can be hard to find a job or a home.
America needs reparative justice, and that starts by clearing the names of the millions of Americans currently dragging the ball and chain of a past marijuana offense. It must also include releasing every prisoner held for minor marijuana offenses.
What are the States Doing?
Some states, like Illinois and California, are tackling the issue without waiting on federal actors. They introduced social justice provisions when they passed marijuana legalization, and the states’ district attorneys took on the task to clear hundreds of thousands of old cases.
When California legalized recreational marijuana, it also allowed expungements, but it did not systematically hand them out. As a result, a minuscule portion of people eligible for it took advantage of it; the vast majority did not even know that it was an option. “This is a time-consuming, expensive and confusing process… only 3% of those eligible for relief under Proposition 64 have received it,” the L.A. District Attorney revealed at the time. To address this, California lawmakers passed the Cannabis Convictions Resentencing Act, three full years after marijuana was fully legalized, solely to empower the justice system to tackle this task. Now, the justice system is able to sort out past convictions without requiring any action from the people in question.
Illinois did even better by baking automatic expungements into the legalization bill itself. Within one year of legalization, half-a-million Illinois residents had their records cleared without needing to take action. Other states which allow some form of automatic expungement include Connecticut, New Jersey, New Mexico, New York, Rhode Island and Vermont. Between all of them, more than two million individual records have been wiped clean in the last few years.
Other states that legalized marijuana with a less justice-minded approach allow for expungements, but they require that each individual petitions the courts for it to happen. It requires that every person with a cannabis track record must follow the news, understand the intricacies of legal requirements and have the time, energy and money to have an attorney and navigate the justice system. It is a less-than-acceptable compromise, although it technically allows people to clear their names, because it will inevitably leave swathes of the population on the sidelines.
A federal, unified approach is absolutely necessary. The only obstacle in the way are Republican lawmakers obstructing all progress. Nonprofits like Code for America created tools that can automatically sort through and identify cases eligible for expungement, for instance. What is an expensive and slow process could become a mere formality, and it would save millions of people.
What is the Federal Government Doing?
In Congress, Reps. Troy Carter and Rodney Davis have introduced the Marijuana Misdemeanor Expungement Act, which would create an expungement mechanism for low-level marijuana offenses at the federal level—only if the offender was not violent or in violation of a law other than marijuana possession.
“It is increasingly clear to policymakers that saddling people with the lifelong collateral consequences of even a low-level marijuana arrest or conviction is unjust and provides no legitimate benefit to society. Facilitating the expungement of minor federal marijuana offenses is a necessary step that will allow impacted people to reach their full potential,” said Morgan Fox, political director of the National Organization for the Reform of Marijuana Laws (NORML) in defense of the bill.
But a lot of eyes are on the person with the most power in the immediate future regarding this matter: President Joe Biden. Through executive powers, the president could simply issue a mass pardon to nonviolent marijuana offenders. In 1977, President Jimmy Carter issued a blanket pardon to every American who dodged the draft for the Vietnam War. Joe Biden could just do that for marijuana. He chooses not to.
Expunging past convictions and releasing all prisoners held on marijuana possession charges is not some idea out of left field. It is literally the crux of Joe Biden’s platform on drug reform. “Nobody should be in jail for smoking marijuana,” Joe Biden promised on the campaign trail.
“Under a Biden-Harris Administration, we will decriminalize the use of marijuana and automatically expunge all marijuana use convictions and incarcerations for drug use alone. This is no time for half-stepping. This is no time for incrementalism,” Vice President Kamala Harris promised.
Biden did in fact pardon some marijuana offenders—nine of them. Biden has the power, the opportunity and—or so he claims—the desire to end the unfair treatment of the millions of Americans awaiting to be freed and to have their records expunged. U.S. Pardon Attorney Elizabeth Oyer explicitly spelled it out during the Justice Roundtable event on June 30, 2022: Biden could direct the Office of the Pardon Attorney to categorically pardon every minor marijuana offender, past, present and future, and they would do it.
Marijuana enthusiasts and human rights activists have been getting increasingly frustrated with the president as months tick by and Biden’s campaign promise continues to be left untouched. Recently, Biden’s own daughter-in-law, Melissa Cohen, roused anger when she used the U.S. Secret Service to shop at a cannabis dispensary in California.
A lot of hopes now rest on Biden’s recent—and somewhat unexpected—comments about executive actions on marijuana. “I don’t think anyone should be in prison for the use of marijuana,” Biden answered to a journalist on July 16, 2022. “We’re working on the crime bill now.” The president also added that his administration is “working on” a plan to free people currently incarcerated for marijuana. This is the most optimistic marijuana-related message coming out of Biden’s White House since he got the job. White House Press Secretary Karine Jean-Pierre doubled down two weeks later: “He continues to evaluate further uses of clemency powers. We just don’t have any additional announcement to make at this time.”
In one year and a half in power, Biden disappointed many supporters through inaction despite promises to tackle marijuana issues. Karine Jean-Pierre correctly pointed out that Biden pardoned and commuted the sentences of dozens of people with drug charges, nine of whom were for marijuana. That is “more grants of clemency at this point in the presidency than any of his five recent predecessors.” With this new promise to address the problem in the near future, Biden has actually accomplished more for marijuana users than former presidents did. As such, Biden’s underwhelming actions are not because Biden himself is anti-marijuana; it would be more correct to say that the White House has historically been abysmal in its treatment of marijuana, and Biden is relatively very progressive for the position he holds.
