Expungement is going national. The process of having prior cannabis convictions wiped—and beginning to repair the many harms caused by being labeled a criminal—has entered mainstream conversation. Figures as varied as California Governor Jerry Brown and Kim Kardashian have taken up the call to undo decades of damage wreaked by the War on Drugs. But in the era of Donald Trump and Jeff Sessions, we need a little reminder to see this through.
Between October 20-27, a national coalition of 22 cannabis and social justice organizations—the Equity First Alliance—is hosting a series of events for the first-ever National Expungement Week (N.E.W.). The occasion will be used to call for more aggressive expungement measures and other reforms in the era of cannabis legalization. “Thousands of people are incarcerated for cannabis offenses while others have flower delivered right to their front door,” said the Alliance in a video statement. An open letter released September 17 further detailed the mission.
N.E.W. events in cities like Los Angeles, Denver, and Boston will provide expungement services, as well as assistance for employment, education, housing and healthcare. Successful expungement removes a conviction from public and police records, allowing the individual greater access to economic opportunities and resources.
Adam Vine, co-founder of Cage-Free Cannabis (CFC), told Filter that the intent behind N.E.W. and the Alliance is to push the cannabis industry towards the three goals: equity, justice and repair. Together, he said, these principles should help create pathways to ownership in the cannabis industry, provide legal relief to people with criminal records, and reinvest resources in communities devastated by the War on Drugs.
“Expungement is not a simple or painless process.”
“Expungement is the bare minimum of what we need to do,” Vine said. “If you think about the costs of the War on Drugs and cannabis prohibition, they’re not only legal. They also include the collateral consequences of convictions. People have lost housing, education, employment, and access to other services.”
In this spirit, two of the events CFC is coordinating in California include resume workshops and employer mentorship, immigration advice and health screenings. Expungement clinics generally offer free legal services through a public defender or volunteer attorney. Participants can access their police record, fingerprints and other records related to their case.
Vine emphasized that expungement is not a simple or painless process. Petitions must be filed at the courthouse in the county where the conviction was made, requiring applicants to take time off work and organize transportation. Some applicants may require an attorney, adding further costs. The process can be stressful for people forced to relive the details of their convictions that maybe happened years or even decades ago.
Expungement law varies state-by-state, but eligible applicants usually have low-level convictions, and don’t have a more serious conviction. Usually, a petition must be reviewed by a district attorney, then sent to a judge to be approved or rejected.
An expungement clinic taking place in Los Angeles in March 2018. Credit: Adam Vine.
Progress and Peculiarities in Different States
California has made particularly notable progress. The successful passage of Propositions 47 and 64 allowed for progress in post-conviction relief for cannabis and other low-level areas. On September 30, 2018, California Governor Jerry Brown codified those initiatives by signing into law Assembly Bill 1793, which created a mechanism for “automatic expungement.”
This means that rather than putting the burden for expungement on applicants, state prosecutors in the California Department of Justice are required to review over 40 years’ worth of cannabis cases and determine their eligibility for sentence reduction or expungement. The department has until July 2019 to submit eligible cases to district attorneys, who will then have one year to approve or object.
“This needs to be the goal of our policy reform in other states,” Vine said. “It’s something we pushed very hard for here in California.” In his city of Los Angeles, where the majority of the state’s cannabis convictions are made, literally hundreds of thousands of people could benefit from this law.
But Vine acknowledged that the fight is not yet over in his state. “The process will take two years—that’s a long time to wait for justice. We need to be watchful, to ensure that the process is swift and thorough. We can’t simply trust the government to right its past wrongs.”
Other states have implemented less comprehensive measures. In April this year, Massachusetts Governor Charlie Baker signed a bill overhauling the state’s criminal justice law, and including a measure for expungement of some cannabis offenses.
“This is a step in the right direction, though the law is still very prohibitive regarding who is eligible to expunge their records,” said Joe Gilmore, a N.E.W. organizer and co-founder of the Massachusetts Recreational Consumer Council.
Gilmore explained that the law allows for expungement of certain “crimes” no longer considered criminal, like possession of up to an ounce in public or home-grows. But most convictions in Massachusetts are for distribution charges, which are not eligible under the reform.
Even more restrictively, the law also renders ineligible people who were 21 or older when convicted. “Legislators need to take further steps of ensuring the intended individuals and communities stuck in our failed criminal justice system are benefiting from this process,” Gilmore said.
His organization is hosting an event in Massachusetts on October 27, which will not provide expungement services but rather education for community members about how to benefit from the new law. It will also host local cannabis businesses providing employment advice for people interested in joining the industry—and both candidates for Suffolk County District Attorney.
Maryland has some convoluted expungement laws.
As another example, Maryland has some convoluted expungement laws. Rachelle Yeung of the Minority Cannabis Business Association, who is organizing three N.E.W. events in the Baltimore and Washington, DC areas, told Filter that only cannabis possession charges can be expunged in the state.
After a criminal justice reform signed by Governor Larry Hogan in April 2016, offenses for possession of under 10 grams of cannabis became immediately eligible for expungement. Those offenses are no longer considered criminal under state law. However, possession of larger amounts can only be expunged four years after the completion of a sentence.
“Another challenge we’re facing is the ‘unit rule’,” Yeung said. “That means if there are other charges—such as DUI, illegal firearms possession, or others—stemming from the same marijuana-related incident, you can’t get even the nonviolent offenses expunged. This prevents a lot of people from benefiting from expungement who should be eligible.”
Yeung called for a broader effort to repair the harms of criminalization, and highlighted a limitation of cannabis expungement. “A major flaw of only focusing on expungement of marijuana-related crimes is that marijuana may have been the underlying cause for searches leading to various [other] charges, but marijuana may never appear on your charge sheet,” she said. “So any other more serious charges you incur from that same incident become un-expungeable.”
“We won’t forget about the lives lost behind bars or the individuals facing systemic barriers.”
I asked Adam Vine what a long-term national solution to expungement would look like. “We certainly need a change in federal policy, something like the law put forward by Senator Cory Booker,” he said. Senator Booker’s proposal is to federally decriminalize cannabis, expunge all possession and use convictions, and invest a half a billion dollars in community funds.
But Vine stressed that this issue is to a large extent the domain of individual states. “The bulk of cannabis convictions have happened at the state level,” he pointed out. “What we need is federal money to help support the automatic expungement process at the state and county levels, and the further development of algorithms and other technology to assist in those processes.”
As well as contributing to N.E.W., Vine is helping to develop a toolkit to assist people in putting together their own events in other communities. “We want to encourage people to demand this right to erase convictions from their records,” he said. “We want to give them the tools to host these events but also encourage them to push for further policy reform.”
Activists hope that N.E.W. will inspire communities to use their collective power to seek justice. “We can’t sit back while businesses attempt to capitalize from this newly legal commodity that has marginalized so many people in our community in the past,” said Gilmore. “We won’t forget about the lives lost behind bars or the individuals facing systemic barriers due to prior offenses.”
*A full list of National Expungement Week events is available here.
The main image shows a November 2017 rally organized by the Massachusetts Recreational Consumer Council. Credit: MRCC.