Nine states have legalized recreational use of marijuana. Despite that, and the fact that public opinion has grown in favor of legalization, people in those states are still serving jail time or facing professional and financial consequences for low-level, nonviolent marijuana arrests and convictions.
Generally, people with criminal records are about half as likely to receive a call back from a prospective employer. The numbers are worse for applicants of color. This can also hurt a person's eligibility for public housing and student loans, as well as their chances of obtaining personal loans.
But there's a small, growing movement among cities in legal marijuana states to either reduce sentences or expunge marijuana-related charges from before the laws changed.
“We’ve shifted public opinion so broadly on marijuana ... but we’ve got to also do something about those who have been arrested, incarcerated or otherwise penalized for possession, or use or sale,” says Chris Alexander, the New York policy coordinator for the Drug Policy Alliance.
This push comes as voters in November could legalize marijuana in two more states -- Michigan and North Dakota -- and New Jersey lawmakers are moving closer to legalization after Vermont earlier this year became the first state to legalize it through the legislature. North Dakota's measure would create an automatic expungement system, and bills have been introduced in New Jersey that would allow people to apply for expungement.
About half of legal marijuana states have processes for people to apply for reduced sentences or expunged records. But the majority of these systems rely on those with convictions to initiate the process, which can be time-consuming and costly, says Kate Bell, general counsel for the Marijuana Policy Project. Many may also be unaware of the option.
In California, for instance, voters in 2016 approved Proposition 64, which legalized recreational marijuana and permitted the reduction of sentences and expunging of records for marijuana convictions. While the Drug Policy Alliance estimates that nearly 1 million people qualify to have their records reclassified or cleared by Prop. 64, just under 6,000 people petitioned for it between November 2016 and March 2018.
This gap between the number of eligible people and those applying for record relief highlights one of the challenges of marijuana policy reform.
“There could be myriad reasons why individuals aren’t applying. It could be simply [because] they don’t know or don’t have the ability to access this,” says Justin Strekal, policy director for the National Organization for the Reform of Marijuana Laws. “The better public policy is to have the jurisdictions go through and expunge those records [automatically] without putting the burden on the individual.”
Some cities are doing just that.
In January, San Francisco announced it will retroactively dismiss around 3,000 misdemeanor marijuana convictions and review about 5,000 felonies dating back to 1975. The next month, Seattle announced similar plans to vacate between 500 and 600 convictions dating back to 1997.
“We want to address the wrongs that were caused by the failures of the war on drugs for many years in this country and begin to fix the harm that was done not only to the entire nation but specifically to communities of color,” said San Francisco District Attorney George Gascón in an email.
After the passage of Prop. 64, San Diego County worked with the public defender to petition on behalf of eligible residents to receive marijuana sentence reductions, according to Tanya Sierra, a public affairs officer for the county's District Attorney’s. So far, 1,131 sentences have been reduced or dismissed. The initial focus was for people on probation or in custody, but Sierra says the public defender may consider relief for more than 14,000 defendants going back to 2005.
Some marijuana advocates, however, want to see states step up. Bell, of the Marijuana Policy Project, hopes states will develop automatic expungement systems that benefit people in both urban and rural areas.
“I certainly commend the prosecutors that have taken this into their own hands to do the right thing,” she says. “But it should be uniform across the state, and the only way that’s going to happen is if the state provides resources.”
For some, full legalization isn't a necessary step to achieve the same goal as San Francisco and Seattle.
Kevin Sabet, president and CEO of the anti-legalization group Smart Approaches to Marijuana, argues that decriminalization addresses criminal justice issues more directly than legalization. The latter, he says, is only focused on profit and commercialization.
“Just because it’s legal doesn’t mean you don’t get arrested,” he says. “It’s not legal if you’re under 21, it’s not legal to use in public housing, it’s not legal to use it in schools.”
According to a Prison Policy Initiative report, 235,000 people were locked up in state prisons or local jails for drug offenses in 2016.
Currently, 13 states have decriminalized but not legalized marijuana. In Rhode Island, for instance, marijuana possession can result in a fine rather than criminal charges. And last month, the state’s governor signed a bill that allows people to petition for record expungement even though recreational use of the drug is still illegal there. In New Jersey, the state attorney general has paused all marijuana prosecutions until Sept. 4 while his office decides whether to officially decriminalize the drug.
While legal marijuana states have seen steep drops in marijuana arrests, blacks and latinos are still much more likely to be arrested for marijuana-related offenses than whites within those states.
Legalization does not “fix” racial bias, says Alexander of the Drug Policy Alliance. Those are problems that need to be addressed within the policing and justice system as a whole. But, he says, legalization and record expungement are important starting points.