The People the Pot Laws Forgot

In states where their once-illegal actions have become legal, people are still haunted by their records. Voters have legalized recreational marijuana through ballot initiatives in four states. But these initiatives do not affect the old marijuana convictions that burden 4 million Americans.
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Cork, Ireland
Cork, Ireland

In 2012, Lucy, a certified nurse's assistant (CNA) and single mother of two young children, was riding home on the train when a mentally disturbed woman began shouting at her. Police officers in the next car noticed the commotion. They searched Lucy and found a few joints' worth of marijuana in her purse. Lucy was arrested and spent four days in jail. She lost her job and was sentenced to ten months of probation for marijuana possession. The state suspended her driver's license and charged her over $5,000 in court costs, probation bills, and drug test fees plus $150 for a psychiatric evaluation.

A majority of Americans support marijuana legalization, recognizing that regulation can reduce youth use, raise revenue for drug treatment and schools, deprive gangs and cartels of their main revenue source, and eliminate the waste and injustice in stories like Lucy's. Voters have legalized recreational marijuana for adults through ballot initiatives in four states -- though not Texas, where Lucy lives.

But these legalization initiatives do not affect the old marijuana convictions that burden an estimated four million Americans. Even in states where their once-illegal actions have become legal, people like Lucy continue to be haunted by their records. Lucy's conviction made her ineligible for federal student loans, public housing and food stamps. When she applied for jobs, employers balked at her criminal record. Her CNA certification and educational financial aid could be revoked -- one reason Lucy does not want me to use her real name. She completed her probation without incident, yet it seems her conviction may follow her for the rest of her life.

Marijuana retroactive relief laws offer a solution. Retroactive relief laws allow ex-offenders whose actions have since become legal to expunge their criminal records. The vast majority of developed countries apply retroactive relief automatically anytime a prohibited activity is legalized, but the United States does not. Yet while retroactive relief is not automatic here, it does not need to be difficult. States already allow people to apply to expunge old, minor convictions, so if they simply retroactively downgrade small-time marijuana offenses those offenses can then be expunged. In Oregon, House Bill 3400 retroactively converted old marijuana felonies into misdemeanors, allowing ex-offenders to apply for expungement under existing laws. In addition, Oregon's recently enacted Senate Bill 844 allows ex-offenders to expunge a marijuana conviction if they committed an offense before age 21 and have since maintained a clean record. Oregon is the first of the four legal-marijuana states to offer any substantive retroactive relief.

Opponents of marijuana retroactive relief laws argue that those who broke the law deserve the consequences, because they knowingly committed a crime. The foundation of their argument is the belief that marijuana use merits punishment. But who would support a lifelong criminal record for someone who had been convicted of liquor possession during alcohol prohibition? We understand that alcohol possession should not be a crime and would all vote to expunge the obsolete conviction. The same should be true for marijuana.

Justice for individuals aside, there are two important reasons that our society is better off providing retroactive relief. First, retroactive relief mitigates the racial injustices of the past, since minorities have been far more likely to receive marijuana convictions than whites. Half of all black men are arrested by age 23, and the leading cause of arrest has been drug offenses, mainly marijuana possession. Though black and white Americans use marijuana at similar rates, the targeting of black neighborhoods by programs like stop-and-frisk has made black Americans 3.73 times more likely to be arrested for marijuana possession than whites. Once arrested, black people have been twice as likely to be convicted and branded with a criminal record. We cannot maintain these old convictions without validating the racial discrimination in the criminal justice system that gave white marijuana users a pass while targeting black users. Retroactive relief is a key step in undoing the injustice of racial discrimination in marijuana law enforcement.

Second, we should support retroactive relief because when a large share of Americans has a criminal record, it hurts all of us. Millions of Americans with marijuana convictions are more likely to find themselves unemployed or underemployed, less educated or homeless. They have less money to spend on American-made goods and services, weakening our economy and depressing the value of our investments. That's why Charles Koch estimates that eliminating mass incarceration could reduce the U.S. poverty rate by 30 percent. Freeing former marijuana offenders in legal marijuana states from the burden of a criminal record enables them to gain employment and contribute to the economy, making retroactive relief both true social justice and good economic practice.

Retroactive relief can be included in marijuana ballot initiatives, but only when the public starts paying attention to the issue. Initiatives are drafted by advocates who strategically test each provision to see if it attracts or repels voters. If we start discussing retroactive relief with friends, family and the media, polling will demonstrate and drafters will recognize that retroactive relief is an asset to legalization initiatives, not a liability. If we stay silent, they will find it all too easy to continue ignoring people like Lucy.

Lucy has been lucky -- she eventually found another CNA position, completed her phlebotomy certification and now makes $14 per hour taking blood samples. However, she doubts that she will ever become a registered nurse, as she had once planned. She has to disclose her marijuana conviction on every job application, which could not only get her rejected but also strip her of financial aid and even her CNA and phlebotomy certifications. Her three-year-old arrest weighs on her nearly every day. "In ten years," Lucy sighs, "I probably won't be in nursing."

CORRECTION: A previous version of this article neglected to mention Oregon's House Bill 3400. HB3400 increases access to expungement for marijuana offenders by reclassifying past crimes to lower-level offenses, rendering most eligible for expungement under existing state laws.

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