Decriminalization and expungement

One of the most important components of cannabis legalization is ending the failed War on Drugs, and all levels of government should play a direct role in repairing the harm done through decriminalization and expungement efforts. 

Policy recommendations

  • Expungement of cannabis-related criminal records should stand at the center of any medical or adult-use cannabis law.
  • To reduce barriers for expunging records, lawmakers should implement automatic expungement by establishing procedures for identifying and clearing all eligible cannabis-related convictions.
  • Statewide expungement efforts should be coupled with a deadline for local governments to carry out the proceedings within a reasonable timeframe.
  • To ensure that the target population for expungement efforts is reached and to remove any ambiguity surrounding eligibility, individuals who qualify for expungement should be notified of their eligibility by mail and again when their records have been officially cleared.

What is decriminalization and expungement?

Decriminalization: Decriminalization occurs when the penalties for drug possession, consumption, and/or low-level sales are removed or significantly reduced. For cannabis-related charges, decriminalization efforts typically reduce felonies to misdemeanors and jail time is replaced with a small fine.

Decriminalization is not to be confused with legalization- and is not sufficient on its own to undo the harms of the past- but  remains an important component in ending the senseless punitive approach to cannabis possession and consumption.

Expungement: Expungement is when criminal and arrest records are sealed or destroyed. An expungement is the equivalent of acting as if the criminal conviction never occurred. Expungement proceedings occur at the state and local level, and each jurisdiction has different eligibility requirements, application procedures, and processes for carrying out expungement orders.1

Why do decriminalization and expungement matter?

Decriminalization and expungement play an important role in the overarching goals of justice and equity. The cost of drug criminalization goes beyond just the estimated $1 trillion the U.S. government has spent on the War on Drugs since 1971.2 It includes the millions who have been arrested for cannabis, with 663,367 arrests in 2018 alone, the 450,000+ people who are currently in prison for drug-related charges, and the 1.15 million people who are on probation and parole for drug-related offenses.3 The impacts of cannabis criminalization compound throughout an individual’s life and have lasting impacts on local economies, labor markets, and social institutions.4 A cannabis-related charge on one’s record poses significant barriers to education, employment, housing, and other means that facilitate upward economic mobility. Decriminalization is a step toward ending the failed War on Drugs, and expungement allows people to move on with their lives free of the burden of a cannabis charge on their record.

2https://www.americanprogress.org/issues/criminal-justice/reports/2018/06/27/452819/ending-war-drugs-numbers/

3http://www.drugpolicy.org/issues/drug-war-statistics

4Clear, Todd R. “The Effects of High Imprisonment Rates on Communities.” Crime and Justice, vol. 37, no. 1, 2008, pp. 97–132. JSTOR, www.jstor.org/stable/10.1086/522360

Why Automatic Expungement is Necessary and the Role of Local Governments

After years of facilitating the incarceration of millions of Americans for cannabis-related charges, expungement is nothing short of a moral imperative for state governments. However, simply permitting expungement leaves out hundreds of thousands of individuals who cannot afford the costly and time-consuming process required to clear one’s record. Automatic expungement relieves individuals of the burden of petitioning the courts and places the responsibility of identifying and clearing all qualifying criminal records on the local or state government. 

In many jurisdictions, the State may enable or even mandate expungement for certain criminal convictions, but the local governments are tasked with carrying out the expungement process. To ensure compliance and action within a reasonable timeframe, any state-led expungement mandate should be coupled with a deadline for local governments to carry out the proceedings. California’s passage of AB 1793 is a clear example of a comprehensive automatic expungement bill that provided explicit deadlines for local governments while still placing a reasonable portion of the burden on the State. AB 1793 mandated a statewide automatic review of cannabis convictions that possibly qualify for resentencing, reclassification, or expungement. The California Department of Justice was required to identify those potentially eligible for relief and notify the relevant district attorneys by July 1st, 2019. The prosecution now has until July 1st, 2020 to review and challenge all cases, and approximately 220,000 people are estimated to benefit from the law.5

Code for America partnership in California

In May of 2018, the San Francisco District Attorney’s office partnered with Code for America, launching a pilot program to develop a process for automatic expungement. Code For America developed Clear My Record, which is a technology that reviews and automatically identifies criminal convictions that qualify for sentencing relief under Proposition 64. Clear My Record can determine the eligibility of “thousands of convictions in just a few minutes.”6 This technology entirely removes the burden on the individual and significantly reduces the strain on government employees who no longer need to review each case individually. When the pilot program was completed, a total of 8,132 Proposition 64 convictions were dismissed and sealed in San Francisco.7 Code For America has since partnered with multiple counties, including Los Angeles, San Joaquin, Cook, and Sacramento, to automatically expunge cannabis records.

Expungement in the digital age

While technology can expedite the expungement process and help clear thousands of records in a matter of minutes, it is unlikely that one’s record is entirely eliminated in the digital world.  A recent report from the Brookings Institution notes that “In the era of big data and algorithmic decision making, the use of criminal public records is ubiquitous. Personal criminal justice data (regardless of accuracy or currency) are widely available, inexpensive, and frequently used by employers, licensing authorities, and landlords to shape their choices.”8 

While expungement removes a criminal conviction from public records and opens up opportunities to housing, employment, and education, it does nothing to clear information that already exists on the internet. Digitized criminal records are sold to private companies, creating further lasting problems for individuals with past criminal convictions. For example, many employers conduct background checks on potential hires using private database companies that have access to hundreds of millions of criminal records. It is unclear how often the information in these databases is updated, and expunged records sometimes still show up on background checks.9 This is an increasingly complex policy issue, and further research and efforts are needed to address the impact of one’s digital footprint on social and economic outcomes.

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