AARON RISSMAN—Marijuana legalization—for medicinal or recreational purposes—has been a hot-button issue during the past few election cycles. This cycle was no different. Both major party candidates “voiced support for easing restrictions around the drug and reclassifying it as a less dangerous substance”; and four states—Florida, Nebraska, North Dakota, and South Dakota—had marijuana on the ballot.
Most American adults (57%) support legalizing marijuana for both medicinal and recreational purposes. In each of the past four presidential election cycles (2012, 2016, 2020, 2024), at least one state has allowed voters to decide whether their state should legalize recreational marijuana; to date, nearly half of the states (24 out of 50 states plus Washington D.C., Guam, and the Northern Mariana Islands) have legalized recreational marijuana (either by ballot initiative or legislative action). While the specific type of conduct made legal varies from state to state, the gist is the same. In these jurisdictions, adults (typically aged 21 years or older) can purchase, possess, and use a limited amount of cannabis. Yet, when recreational marijuana is legalized, there often remains a question of how to address individuals who were previously arrested for and/or convicted of the conduct now made legal.
Some states, such as California, Missouri, and New York, addressed past marijuana-related arrests and convictions at the time they legalized recreational marijuana. However, most states initially ignored the issue entirely. Instead, these states chose to address prior convictions with additional legislation. And still, other states, such as Alaska and Maine, have legalized recreational marijuana but have chosen not to address the issue at all. Just as the specific conduct legalized varies from state to state, so do the methods used to address prior marijuana-related arrests and convictions. These methods often include expunging criminal records, sealing criminal records, resentencing, and/or pardoning past offenders.
If a criminal charge or conviction is expunged, it is removed from an individual’s criminal record. Essentially, the charge or conviction is treated as if it never occurred. Over two-thirds of states that have legalized recreational marijuana allow expungement of prior marijuana-related arrests and convictions. These states uniformly offer expungement for at least some formerly illegal conduct—generally misdemeanor possession—that has since been deemed permissible. Some of these states, however, go further. For example, states such as Illinois and New York will expunge even some felony marijuana convictions. Again, because marijuana legalization largely has, to date, been driven by the states, precisely what charges are eligible—and when they become eligible—for expungement varies by state.
State law also differs with respect to whether expungement occurs automatically or upon petition to the court. Automatic expungement requires state officials to identify expungement-eligible charges and to bring those charges to the attention of the court. Petition-based expungement, on the other hand, requires individuals to request relief from the court. Expungement is only granted if the petitioner demonstrates his or her charges are eligible under the state’s specific criteria. This type of expungement shifts costs to the individual requesting relief and is often more time-consuming than automatic expungement. Most states either rely on petition-based expungement or utilize a mix of automatic and petition-based expungement depending on the specific charge at issue. Only one state, California, automatically expunges all eligible marijuana charges.
Unlike expunged criminal records, sealed records still exist in the physical and legal sense, but access to them is restricted absent a court order. Thus, sealing criminal records—while still beneficial—is a less effective remedy for individuals than expungement. About one-third of jurisdictions that have legalized recreational marijuana have implemented provisions that allow certain marijuana-related arrests and convictions to be sealed. (Note, some states authorize both sealing and expunging records.) Among these states, there remain differences with respect to what records may be sealed and whether the process is automatic or petition-based.
When individuals are incarcerated for formerly illegal conduct, expunging or sealing their conviction will not set them free. Instead, these individuals must be resentenced, have their convictions redesignated or vacated, or be pardoned to obtain their freedom. Only a few states offer relief to incarcerated individuals, even when the conduct they were convicted of is no longer illegal. California and Illinois authorize prosecutor-initiated sentence reductions and sentence redesignations (i.e. changing a felony charge to a misdemeanor), while New Mexico and Washington permit automatic resentencing. Missouri vacates certain marijuana-related charges upon petition, and Montana and New York allow incarcerated individuals to petition the court for resentencing and/or redesignation. Furthermore, Colorado, Illinois, Maryland, Nevada, Oregon, and Washington have all pardoned certain individuals who had been convicted of certain marijuana-related charges that have since been legalized.
When marijuana is legalized, the above policies (especially when used in combination) promote justice and fairness. Clearly, it is unjust to hold individuals in custody for conduct that is no longer illegal. Yet, the consequences of a marijuana-related arrest or conviction reach far beyond incarceration. Having an arrest or conviction on one’s criminal record can limit their employment, housing, and educational opportunities, as well as restrict their access to loans and public benefits. It can also increase future criminal penalties. Moreover, given the War on Drugs disparate impact on communities of color—as evidenced by the fact that “a Black person is 3.73 times more likely to be arrested for marijuana possession than a white person, even though Blacks and whites use marijuana at similar rates” —providing relief to those who have previously been arrested or convicted of now legal marijuana-related conduct may help to address racial inequalities.
When marijuana is made legal, justice and fairness require that prior offenders be given a clean slate. People should not be penalized for conduct that the masses now deem acceptable. As additional states, and potentially the federal government, consider marijuana reform, the issue of prior marijuana-related arrests and convictions must not be ignored.
