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Decriminalization and expungement

One of the most important components of cannabis legalization is the opportunity to begin repairing the long-lasting impacts of prohibition. All levels of government must play a direct role in rectifying the harms of cannabis criminalization through decriminalization and retroactive relief measures, including automatic record clearance and resentencing.

Policy Recommendations

  • Automatic 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 prohibition of cannabis.

Expungement: Expungement is when criminal and arrest records are destroyed from the public record. An expungement is equivalent to acting as if the criminal conviction never occurred. The majority of expungement proceedings occur at the state and local levels, and each jurisdiction has different eligibility requirements, application procedures, and processes for carrying out expungement orders.

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. It includes the millions arrested for cannabis, with 663,367 arrests in 2018 alone, the 450,000+ people currently in prison for drug-related charges, and the 1.15 million people on probation and parole for drug-related offenses. The impacts of cannabis criminalization compound throughout an individual’s life and have lasting effects on local economies, labor markets, and social institutions. A cannabis-related charge on one’s record poses significant barriers to education, employment, housing, and other means that typically 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.

Why Automatic Expungement is Necessary and the Role of Local Governments

After years of facilitating the arrest and incarceration of millions of Americans for cannabis-related charges, expungement is nothing short of a moral imperative for the government. However, simply allowing expungement excludes the many 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.

Expungement in The Digital Age

While technology can expedite the expungement process and help clear thousands of records in a matter of minutes, it also serves counter to the goal of entirely eliminating one’s past criminal record. 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.”

While expungement removes a criminal record from public records and opens up opportunities for housing, employment, and education, it has little effect on information already published 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 with 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. 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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