By: Niclas Wright
Marijuana convictions, even for possession of small amounts, can have a harsh impact on the people that are convicted. This on its own is a problem given the country’s trend toward decriminalization but is even more problematic when one considers the disparate impact that marijuana convictions have on black communities. For example, despite marijuana use between black and white communities being essentially the same, a study conducted by the ACLU in 2010 found that black people were 3.73 times more likely than white people to be arrested for marijuana.[i] These convictions cause problems for people as they look for employment. Minor convictions for possession appear on a person’s criminal offender record information which can be used to deny a person employment and even housing opportunities.[ii]Other adverse consequences include students losing financial aid eligibility for having a possession conviction, which has happened to more than 200,000 students across the country.[iii]
The legalization of possession of marijuana and the expungement of marijuana-related offenses has gained traction in recent history. President Biden, during his 2020 presidential campaign took the stance that no one should be in jail because of marijuana use. He claimed that as president he would decriminalize marijuana use and automatically expunge prior convictions.[iv] Most states that have enacted statutes to expunge marijuana convictions have limited expungements to convictions involving a small amount of marijuana.[v]
Even the states that have advanced expungement statutes for marijuana convictions fall short is by not making the expungement of those convictions automatic. A major concern when expungement is voluntary is that people may struggle to pay outstanding fines, locate necessary documents, or even be aware that they are eligible for expungement at all.[vi] A 2019 report found that only four to six percent of people eligible for expungement or post-conviction relief actually apply for it.[vii]
Recently, marijuana legalization and expungement have taken another step forward. New Mexico’s legislator has recently passed two new laws related to marijuana. One law, known as House Bill 2, legalizes the possession of two ounces of marijuana for adults 21 or over.[viii] A companion bill, known as Senate Bill 2 provides automatic expungement of the records for actions that would have been legal in light of House Bill 2.[ix] Under Senate Bill 2 all public records related to the conviction of marijuana charges held by a court or an agency of the state will be expunged.[x] The driving force behind the expungement statute was to benefit those who have been disproportionately harmed by the war on drugs by erasing the burden associated with having prior convictions on one’s record.[xi] The bill requires the state Department of Public Safety to review criminal records that are eligible for expungement and to notify the corrections department as well as relevant defense attorneys.[xii]
New Mexico is not alone in the push for automatic expungement. New York has also recently passed legislation that will facilitate the automatic expungement of marijuana convictions.[xiii] New York, like New Mexico, has legalized the recreational use of marijuana and has passed legislation that automatically expunges the records for people who have convictions that would be legal under the new law.[xiv] This law was made partially in response to black New Yorkers making up ninety four percent of marijuana related arrests in 2020.[xv]
The vast disproportion of marijuana convictions shows the need for legalization and automatic expungement of past convictions, but not everyone agrees with this assessment. Some people have expressed concerns over expungement because of the possible value that a criminal record can give to law enforcement, such as the value of having the person’s fingerprint data if the person does not have any other convictions.[xvi] This argument misses the mark. If the only reason that a person’s fingerprints are in the system is due to a marijuana conviction, then losing those prints is entirely fair and necessary for expungement.
The bottom line is that marijuana should be legalized, and expungement of marijuana convictions needs to be pushed across the country, and the expungement needs to be automatic rather than voluntary. Marijuana convictions have disproportionally impacted the black community. Legalization of marijuana is the first step in curing this harm, but the remainder of criminal records perpetuates the harm. For this reason, these criminal records should be expunged automatically and at no cost.
[i] ACLU, Marijuana Arrests By the Numbers, Aclu https://www.aclu.org/gallery/marijuana-arrests-numbers [https://perma.cc/97Z2-AR7P].
[ii] Greaney & Morgan, The Benefits Of Sealing And Expunging Cannabis Records, Businesswest (Mar. 17, 2020), https://businesswest.com/blog/the-benefits-of-sealing-and-expunging-cannabis-records/ [https://perma.cc/L3K7-2Z5N].
[iii] Murphy, Record Expungement Is A Necessary Component Of Cannabis Legalization, Forbes (Mar. 5, 2020), https://www.forbes.com/sites/kevinmurphy/2020/03/05/record-expungement-is-a-necessary-component-of-cannabis-legalization/?sh=653bdd3273e2 [https://perma.cc/K9YC-T3PM]
[iv] The Biden Plan For Strengthening America’s Commitment To Justice, Joebiden https://joebiden.com/justice/ [https://perma.cc/QA2U-23SF].
[v] Schlussel, Legalizing marijuana and expunging records across the country, ccresourcecenter (Mar. 12, 2020), https://ccresourcecenter.org/2020/03/12/legalizing-marijuana-and-expunging-records-across-the-country/ [https://perma.cc/FD4S-29Z8].
[vi] Lekhtman, Marijuana Record Expungement Movement Growing Rapidly, Report Shows, Marijuanamoment (Jan. 17, 2020), https://www.marijuanamoment.net/marijuana-record-expungement-movement-growing-rapidly-report-shows/ [https://perma.cc/LQT2-T7MW].
[vii] Id.
[viii] Jarvis, NM Lawmakers Pass Adult-Use Marijuana Measures, Law360 (Apr. 1, 2021), https://www.law360.com/cannabis/articles/1371394/nm-lawmakers-pass-adult-use-marijuana-measures [https://perma.cc/2F6L-XT5P].
[ix] Id.
[x] McDevitt, Arrested for marijuana in New Mexico? Here’s what to know about the state’s expungement bill, lcsun (Apr. 1, 2021), https://www.lcsun-news.com/story/news/2021/04/01/new-mexico-cannabis-expungement-bill-erases-marijuana-convictions-arrests/4836277001/ [https://perma.cc/UVU6-GTK5].
[xi] Jarvis, supra note 8.
[xii] McDevitt, supra note 10.
[xiii] Sanchez, With legalization of marijuana, New York will expunge prior convictions, Theverge (Mar. 31, 2021), https://www.theverge.com/2021/3/31/22360455/new-york-marijuana-legalization-conviction-expungement [https://perma.cc/WU56-ZZ2K].
[xiv] Clukey, New York to Expunge Convictions With Marijuana Legalization, Bloomberg (Mar. 28, 2021), https://www.bloomberg.com/news/articles/2021-03-28/new-york-to-expunge-convictions-with-marijuana-legalization [https://perma.cc/KSP2-3NHG].
[xv] Sanchez, supra note 13.
[xvi] DeFeciani, Law enforcement expressing concerns over expunging prior marijuana convictions, cbs6albany (Apr. 5, 2021), https://cbs6albany.com/news/local/law-enforcement-expressing-concerns-over-expunging-prior-marijuana-convictions [https://perma.cc/CD5H-E8TW].