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  • Jack Thole

As States Legalize, the Struggle to Clear Marijuana Convictions Continues

Updated: Oct 25, 2023

On June 17, 1971, President Richard Nixon addressed the nation in what would become known as the War on Drugs Speech. Labeling drug abuse as “America’s public enemy number one,” President Nixon called on Congress to “defeat this enemy” in a new, all-out offensive. To fight Nixon’s “war,” governments at all levels passed draconian laws, calling for the police to increase enforcement and for judges to pass down harsher sentences. In the decades that followed, the United States spent over $1 trillion enforcing drug laws, with the federal government spending an estimated $9.2 million a day on incarceration costs alone.

In the United States, a person is arrested for simple drug possession every 25 seconds.

In 2018, 1,654,282 people were arrested for violations of various drug laws. Unsurprisingly, of those 1.65 million arrests, more than 40% were for America’s drug of choice, marijuana. And yes, you guessed it, 92% of those arrests were for simple possession alone. These numbers are from 2018 and represent a slight downturn from the previous decade. Between 2001 and 2010, the ACLU reports that over 7 million individuals were arrested for possession of marijuana, a figure that averaged out to one marijuana-related arrest every 37 seconds.

On election night 2020, four states, Arizona, Montana, New Jersey, and South Dakota, decided to join the growing ranks of states that have legalized recreational marijuana. The count now stands at fifteen states where the plant is 100% legal (plus DC), and an additional eighteen states that have legalized medical use. As public approval of recreational legalization approaches 70%, and public approval of medical legalization has surpassed 90%, it is time for the United States to waive the proverbial white flag and concede. Marijuana has won the war. Now, it is time to begin correcting the wrongs of the past as we work to stop them from occurring in the future.

In the United States, having a criminal record can prevent you from doing many necessary things in life, namely getting a job and finding a place to live. As more states legalize marijuana, it is important that these states also pave the way for those with marijuana-related convictions to expunge their records. For the unfamiliar, expungement is a process in which a person petitions the court to have their criminal records destroyed or sealed. The expungement process clears your criminal record, so it no longer exists in government records, and theoretically, makes it no longer exist on the public record.

Of the four states that legalized recreational marijuana, only Montana and Arizona expressly addressed the need for expungement and the dire need for releasing those still incarcerated for marijuana possession. Montana Initiative I-190 “allows a person currently serving a sentence for an act permitted by I-190 to apply for resentencing or an expungement of the conviction.” This is an important addition to the law, given Montana’s noticeably harsh stance against marijuana possession in the past. Arizona’s initiative, Proposition 207, requires that starting in July 2021, all courts must expunge convictions for certain marijuana-related charges if a petition is filed.

When California voted to legalize recreational use of marijuana in 2014, the people also voted for the state to let people “petition courts to reduce or hide convictions for past marijuana crimes.” Other legal states like Colorado and Oregon have since passed legislation akin to California, making it easier for people to expunge their marijuana-related convictions. In Cook County, Illinois (Chicago), thousands of marijuana convictions were automatically expunged after the state legalized the plant, in a move the Illinois State Attorney Kim Fox called “righting the wrongs of the past.

However, some states that have legalized recreational marijuana are still struggling to understand the need to expunge prior convictions. Take Massachusetts for instance. In 2016, the people voted to legalize the plant by a large margin. Yet four years later, those with marijuana-related convictions are still struggling to expunge their records. In a state now home to billion-dollar marijuana companies, just 18.6% of expungement applications were granted in 2019.

While expunging criminal records is important, releasing those still incarcerated for actions that are no longer considered crimes is a must. Out of the four states that recently voted to legalize marijuana, only Montana mentioned freeing those imprisoned for marijuana crimes. The Last Prisoner Project, an organization dedicated to freeing people convicted of marijuana-related crimes, estimates that more than 40,000 languish in prison today for minor marijuana crimes. As more states legalize the plant and businesses begin laying the groundwork for future billion-dollar marijuana companies, it is imperative that states do not continue failing to recognize the importance of releasing those whose liberty is restricted on charges that are no longer criminal.

More states are legalizing marijuana, both medically and recreationally, putting stronger pressure on Congress to decriminalize the plant. Talk of federal decriminalization has passed through both chambers of Congress over the years, but now that talk is finally coming to fruition. For the first time, an actual Bill, the “Marijuana Opportunity Reinvestment and Expungement Act,” or MORE Act, was brought to the floor of the chamber of Congress for a vote. Even more promising than just decriminalization, the MORE Act specifically addresses the issues of expungement and resentencing for those convicted of marijuana-related crimes. The MORE Act will require every federal district to “conduct a comprehensive review and issue an order expunging each conviction” for any federal marijuana offense perpetrated between May 1, 1971, and the date the MORE Act is signed into law, meaning that anyone who has completed their sentence for a federal marijuana charge between those dates will be eligible to have their criminal record expunged. Further, the Act will allow anyone still incarcerated for a marijuana conviction to petition their sentencing court for a review their sentence.

The MORE Act was brought to the floor of the House of Representatives for a vote on December 4, 2020, and passed 228 to 164. Unfortunately, Senate Majority Leader McConnell does not seem interested in bringing the MORE Act to a vote. Still, the Act’s passage in the House is a step in the right direction in fixing the decades of damage created by the War on Drugs. Now that marijuana is becoming legal in Republican strongholds like Montana and South Dakota, it is only a matter of time before a bipartisan version of the MORE Act is brought before Congress once again.

It has been almost fifty years since President Nixon stood in front of America and declared the beginning of his War on Drugs. In that time, millions were arrested, and trillions of American tax dollars were spent on combating Nixon’s war. Not only has the battle of public perception against marijuana failed spectacularly, but some jurisdictions are beginning to question the wisdom of outlawing any drug. As the United States bids adieu to the most corrupt President since Nixon, the people have decided that it is time to relieve ourselves of the specter of Nixon’s policies too.


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