After Legalization, Why Can’t People’s Prior Marijuana Convictions Be Wiped Clean?

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by Jake Thomas

on December 15, 2014

Marijuana won in November’s midterm elections, with Oregon, Alaska and the District of Columbia joining Colorado and Washington in legalizing it. But it’s a bittersweet victory for people who have a prior cannabis conviction for doing something that is now legal in their state. For now, efforts to clear pot marks from people’s records in states that have legalized the drug are facing uphill battles.

“It’s pretty much ruined my life at this point,” Aaron Pickel, who was busted in Oregon for carrying two to three pounds of pot-infused edibles, told the Oregonian. “I’ve tried pretty hard to find work, and when you’re going against people who have nothing on their record and you do, you’re not going to get it.” Pickel’s California medical marijuana card didn’t get him out of the charges. Although he was slapped with only a $200 fine and no jail time, the 33-year-old now has a felony rap — and stays in his mother’s spare bedroom.

People who have been convicted of misdemeanor and lesser charges for possessing the drug often have a hard time securing housing, jobs and education. Proponents of “expungement” — wiping records clean — argue that the voters of these states made it clear that possessing small amounts of marijuana should not be illegal and therefore people who have prior convictions should get a second chance. Opponents argue that people should abide by laws until they are changed.

The expungement debate does not address the plight of people currently serving time for nonviolent cannabis crimes, however. The ballot measures that legalized pot allow people to carry only small amounts — in the case of Oregon’s Measure 91, up to an ounce. Before the passage of these measures, these amounts wouldn’t be cause to lock someone up in prison — in Oregon, it resulted in a violation and a fine. Someone would need to possess up to four ounces to be charged with a felony. Carrying four ounces is still illegal under Measure 91.

There were 8 million marijuana-related arrests in the U.S. between 2001 and 2010, according to a 2013 American Civil Liberties Union report. Nearly 36,000 people were arrested in 2010 alone in states and jurisdictions that have recently legalized pot. What’s worse, African-Americans, who already face discrimination in housing, employment and education, make up a disproportionate number of arrests. Nationally, they were 3.7 times as likely to be arrested for marijuana possession than whites in 2010, even though they used marijuana at similar rates.

“There are thousands of people in Washington state who have a misdemeanor marijuana conviction, and it hangs over their head when they apply for jobs or housing or education, and giving them a second chance will remove that obstacle,” says Washington state Rep. Joe Fitzgibbon, a Democrat, who introduced a bill in 2013 that would have cleared the records of people with misdemeanor marijuana convictions.

Fitzgibbon’s legislation ended up stuck in committee. He says that lawmakers apparently want to let the dust settle from pot becoming legal two years ago before further tinkering with marijuana laws. But he got pushback from the state prosecutors’ association, which opposes prior-conviction expungement.

A similar bill failed in the state legislature in Colorado, where pot was also legalized in 2012. But a ruling by the Colorado court of appeals in March could provide limited relief for people with pot convictions. The ruling stemmed from a 2010 court case that involved a woman who was charged with child abuse along with possessing methamphetamine and marijuana. Her lawyer, Brian Emeson, says that he was in the process of appealing her methamphetamine charge when the state legalized marijuana, so he appealed her pot charge as well. The court granted the appeal on the pot charge, removing it from her record.

The ruling only affects people who have an active appeal for a pot possession charge, Emeson says. He estimates that number is anywhere from about a dozen to a hundred. He expects the Colorado supreme court to take up the issue next year and possibly reverse the appeals court ruling.

Emeson says that he was able to separate the marijuana charge from the others in his case, characterizing them as “relatively not that bad.” Emeson acknowledges that child abuse is a serious charge, but he says that courts often see much worse. “It’s impossible for people to ignore really, really bad facts in a case.”

Oregon lawmakers will begin grappling with this problem when they meet in the new year to discuss the implementation of the state’s pot legalization measure, says state Sen. Floyd Prozanski, a Democrat who chairs the senate’s judiciary committee. Prozanski says he does not expect any “blanket bills” that will provide automatic expungement. Efforts to provide relief to people with prior pot convictions are likely to be complicated by other crimes on their records. “Most people convicted of marijuana are convicted of other things that are still illegal,” says Sam Kamin, a professor of constitutional law at the University of Denver and one of the nation’s leading experts in marijuana regulation. Their crimes, not surprisingly, often involve possession or trafficking of large amounts of pot or other drugs.

People convicted of certain felonies and misdemeanors in Oregon can already petition to have their records expunged after a certain period of time has lapsed. Prozanski says that any effort to provide relief to people with pot convictions will rely on the state’s existing expungement process. Lawmakers may update the expungement process in response to marijuana becoming legal.

However, as in Colorado and Washington state, lawmakers will be mainly focused on implementing legal marijuana, Prozanski says. “[Expungement] is sort of secondary issue to the implementation of Measure 91.”

The situation for people with prior convictions is different in Washington, D.C., says Mason Tvert, communications director for the Marijuana Policy Project. In October, the city council passed a bill that would allow people convicted of all crimes and misdemeanors that have become legal to have their records sealed.

The District of Columbia had the highest overall marijuana possession arrest rate in the country in 2010. African-Americans are eight times more likely to be arrested for pot than their white counterparts, according to the ACLU.

However, both this bill and the measure that legalized marijuana require approval by the incoming Republican Congress, which has not been sympathetic to marijuana legalization or people convicted of pot crimes. Some have already said they will oppose D.C.’s legalization measure. “I will consider using all resources available to a member of Congress to stop this action,” Rep. Andy Harris, a Maryland Republican, told the Washington Post.

Making good on that threat, congressional Republicans and Democrats struck a deal on Tuesday to fund the federal government through September that includes provisions upending Initiative 71’s legalization of pot, according to the Washington Post. At press time, advocates were debating whether or not the language in the bill offers a loophole allowing the will of D.C. voters to go forward.

How this mess will ensnare efforts of people to expunge their prior pot convictions remains to be seen. “There’s some uncertainty surrounding the effect the provision will have on the measure. It could end up being a situation in which the courts will decide,” Tvert wrote in an email. “With all of the issues facing the country, it’s astonishing that some congressional members are so concerned about blocking D.C. from enacting a widely supported local policy. If cartels and gangs had lobbyists on the Hill, preventing marijuana regulation would be their top legislative priority.”

Pro-pot politicians in a few other states are already taking steps to expunge peoples’ old marijuana convictions should the drug be legalized. One Maryland lawmaker has proposed legislation that would erase any prior marijuana-related offense that becomes legalA candidate in last year’s Democratic primary for Pennsylvania governor called for legalizing pot and expunging records of people convicted of possessing it.

But one of the biggest victories for advocates of expunging peoples’ past drug records came in the 2014 midterm election in a state where pot legalization wasn’t even on the ballot. California voters approved Measure 47, which automatically and retroactively downgraded some nonviolent felonies, many of them drug-related, to misdemeanors. Some 10,000 people are eligible for immediate release, including many who have been jailed for drug misdemeanors — and, once again, a disproportionate number are African-Americans.

Jake Thomas is a reporter in Spokane, Washington. He has written for the Portland MercuryStreet Roots and numerous other publications. His website is here. He tweets at @jakethomas2009. This is his first piece for Substance.com.