Federal Legalization Still Wouldn’t Free All Cannabis Prisoners

April 7, 2022

“Tell everybody in this government that y’all need to let everybody out of jail for selling weed before y’all start making it legal for people to sell it and make capital off it,” said Chance the Rapper in 2017. The legalization bill currently being considered by Congress, welcome as it is, would fall short of accomplishing this.

On April 1, the US House of Representatives voted in favor of federal marijuana legalization for the second time in its history. It approved the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act by a vote of 220-204, largely along party lines (just two Democrats opposed it, while three Republicans voted yes). But a vote in the 50-50 Senate would require 60 in favor to break the filibuster, and Biden still won’t back the bill, so legalization this year remains a long shot.

But when that day comes, what happens to millions of people who are either in prison, on probation or parole, or have a criminal record for marijuana?


A Stratified Future?

The MORE Act would remove cannabis from the federal Controlled Substances Act, giving it a legal status on par with alcohol and tobacco. Federally, all current and past cannabis convictions or arrests, for anything newly legal, would be void.

“The MORE Act will reduce time served by 73,000 person-years over the 2021-2030 period.”

To put that in practice, the MORE Act requires all 94 federal district courts to review their records for nonviolent cannabis convictions and arrests, and order them to be expunged. This would apply to any cases dating back to May 1, 1971, when the Controlled Substances Act took effect. The courts would have to notify individuals whose records were cleared. And in case any records were missed, people would have the right to petition courts directly to expunge their record. Federal courts would also allow people currently in prison to have their sentences reviewed, which could mean reduced sentences and/or early release. 

The impact would be very significant. “The Congressional Budget Office estimates that the MORE Act will reduce time served by 73,000 person-years over the 2021-2030 period, among existing and future incarcerated individuals,” Maritza Perez, director of the Office of National Affairs at the Drug Policy Alliance, told Filter.

However, federal cannabis convictions are by no means the whole picture. As an example, the Prison Policy Initiative estimates there are about 88,000 people federally incarcerated for drugs. And a relatively small fraction of them are in federal prison for marijuana—about 12 percent, according to a 2015 study from the Bureau of Justice Statistics.

The MORE Act wouldn’t require all states and territories to legalize cannabis.

Meanwhile at the state and local levels, there are about 283,000 people incarcerated for drugs. And we know that state and local drug arrests are disproportionately for marijuana. Most of the War on Drugs, in this sense, has been fought by state and local governments.

The MORE Act wouldn’t require all states and territories to legalize cannabis. So for people with state and local-level criminal records, federal legalization wouldn’t apply.

It’s likely, of course, that federal legalization would encourage some more states to legalize. But they could choose to keep cannabis criminalized—and many, like Idaho or Indiana, probably would. If the MORE Act passed tomorrow, we could still be waiting years for more states, like Texas or Florida, to follow suit. We would be living in a stratified country, similar to where we may be heading with abortion rights.


Incentives to Speed Expungement

The MORE Act would certainly help with expungement in states with legal cannabis. Filter has reported on California, for example, which passed legislation requiring automatic expungement for cannabis convictions, but has failed to fulfill that promise years later. Expungement there has been slowed by a combination of poor leadership, combative elected officials and the logistical challenges of finding and sorting several decades’ worth of criminal records.

More money can help with some of those problems. The MORE Act would charge a 5 percent federal excise tax on cannabis products (it would rise to 8 percent by the fifth year after the law passes). From this pool of money, half of every dollar would fund a Community Reinvestment Grant Program, run by a new Cannabis Justice Office. Its goals would include providing “legal aid for civil and criminal cases, including expungement of cannabis convictions.”

The bill would also incentivize states to take action on cannabis convictions through another grant program, run by the Small Business Administration. The SBA would provide grants to states that make it easier for low-income people and those with past cannabis convictions to become licensed cannabis business owners. To be eligible, the state would have to eliminate criminal violations for cannabis and have an automatic cannabis expungement process.

If Congress passes the MORE Act or something similar, it will be an important and necessary step to reversing a near century-long war on cannabis users. But that’s not where the war ends—its last days will likely be fought in our state houses and city councils.



Photograph via PxHere

The Drug Policy Alliance previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.

Alexander Lekhtman

Alexander is Filter's staff writer. He writes about the movement to end the War on Drugs. He grew up in New Jersey and swears it's actually alright. He's also a musician hoping to change the world through the power of ledger lines and legislation. Alexander was previously Filter's editorial fellow.

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