Since Colorado and Washington legalized recreational marijuana use in 2012, nine more states and the District of Columbia have legalized small amounts of marijuana for recreational consumption. An additional 15 states have decriminalized it, making it a civil infraction or low-level misdemeanor with no possibility of jail time. Despite these recent trends, thousands of people across the United States continue to have records of marijuana convictions, even in states that have legalized or decriminalized it. Though some states have instituted policies to address this, every state that has legalized marijuana should automatically expunge all convictions and clear citizens’ records.
States should clear marijuana convictions because those records can continue to haunt past offenders. Even if the state in which they were charged no longer considers it a crime to possess or consume small amounts of marijuana, people still struggle to access public services or get jobs. A 71-year-old Vermont man named Glyn Wilkinson was first charged with a marijuana violation in 1968. As a result, he was unable to purchase a firearm and even travel to Canada. Wilkinson’s record was cleared last year on an “Expungement Day,” during which he was required to travel to Burlington. Rather than making someone petition the state and travel to clear their record, the states that have legalized marijuana use should do it automatically. Before Illinois legalized marijuana, 42 percent of all drug arrests in that state were for cannabis-related offenses. Since prosecutors targeted marijuana users during the War on Drugs, the default should be to update every offender’s record to current standards. If someone was charged with a misdemeanor for an act that is now legal, that charge should be wiped from their record.
Furthermore, marijuana enforcement historically disproportionately targets African Americans. Despite the fact that people across all races consume marijuana at similar rates, African Americans are almost four times as likely as white people to be arrested for possession of cannabis. Legalization is a way to stop this specific instance of discrimination going forward, but it does not address the continuing effects of these historically oppressive policies. While automatically clearing records does not erase the actions of the past, it is a step in the right direction. Since drug convictions negatively impact people’s eligibility for federal student aid, clearing records is all the more important in ensuring the ability of Americans to attend college and university.
Some states have taken the initiative and have already begun to automatically clear past marijuana convictions. California in particular has been making headway on this issue. After marijuana was legalized there, officials expected waves of people to petition to clear their old convictions, but the process was so complicated most people did not even attempt it. To remedy that problem, the counties of Los Angeles and San Joaquin enacted plans to automatically clear or decrease the 54,000 recorded convictions. San Francisco did similarly and promised to clear 9,300 convictions going back decades.
Aside from the concrete issues associated with the failure of states to remove convictions, moral issues still exist with leaving them on the books. The point of maintaining criminal records is to make certain people who may come into contact with the person, such as employers or universities, are aware of serious problems regarding a person’s conduct. But because certain states no longer believe that possession of marijuana is as serious an offense, punishing someone with that outdated standard undermines the legal system.
To be clear, this does not work the other way around. A state should not press charges against someone who acted a certain way if the act was subsequently made illegal. That is called an ex post facto law, and it is immoral to punish someone based on an action that was unpunishable when it occurred. On the other hand, if someone acts in a certain way that society eventually comes to understand as legal, their record ought to reflect the same data as someone who engaged in the newly legal activity. The difference between the two lies in standards of culpability — that of the state versus that of an individual. If an individual engages in an activity that is legal when it happens, but the state outlaws it afterwards, it is unacceptable to punish the individual for an action that was legal at the time it happened. On the other hand, if a state eventually changes its laws to legalize a certain action, the state is acknowledging that it was in the wrong to prosecute anyone for that action when it was illegal and therefore should make amends by wiping the convictions.
As more states legalize and decriminalize marijuana, they face the issue of what to do with past convictions. Since it is clear that keeping these criminal records makes it far more difficult for convicted Americans to get jobs and federal student aid, and that it disproportionately targets people of color, those states should clear these convictions.
Joel Weiner can be reached at jgweiner@umich.edu.