Turning Over A New Leaf: The Push To Nix Old Pot Convictions

By Jack Karp | October 20, 2019, 8:02 PM EDT

Lucas Loy is one of millions of people with past marijuana convictions hoping that a spate of new state laws aimed at expunging those records might help them escape their "paper prison."

Lucas Loy was just 17 when he was arrested buying marijuana.

Loy, who grew up in a small town in Illinois, says he and his friends would take turns buying pot, "and basically I just ended up being the one that got caught."

Though he only spent about four months in jail for a Class 3 felony, which could have sent him to prison for as long as 10 years, he, like many with similar convictions, still finds himself trapped behind a different set of bars.

Loy is among an estimated 800,000 residents in Illinois alone with marijuana-related convictions on their records. Between 2001 and 2010, more than 8.2 million marijuana-related arrests were made across the U.S., 88% of which were for simple possession, according to the American Civil Liberties Union.

Those whose arrests led to convictions often find themselves barred from certain jobs, housing, government benefits and even their children's field trips.

Loy, now 29 and unemployed, is one of those people.

"I have lost so many jobs ... because of my felony," he says.

While more states have moved to legalize pot, many of them have failed to make provisions to help people who still carry convictions for behavior that's now legal. However, an increasingly loud chorus of activists, lawmakers and some prosecutors are championing bills and even lawsuits to make sure some of those most hurt by prohibition don't get left behind when it ends.

In some places, those efforts are making a difference. New York state, for instance, said it will automatically expunge convictions for possession of 25 grams or less of marijuana as part of a decriminalization bill signed by the governor in July.

But opposition and inertia have stymied similar measures in a number of other jurisdictions, with critics saying avenues for expunging old convictions already exist and the new laws only serve to let people off the hook for activity that was illegal at the time.

Meanwhile, Loy and others with similar arrest records remain locked in what advocates describe as a "paper prison."

"It's just unbelievable the kinds of things that people face even decades later from insignificant convictions," says Emma Goodman, a staff attorney in the special litigation unit of The Legal Aid Society who works to get criminal records sealed.

A New Start

Since 2012, 11 states and the District of Columbia have legalized the recreational use of cannabis, according to the Marijuana Policy Project, while another 15 have decriminalized it, usually meaning possession of small amounts is treated as a violation of the law subject only to a fine rather than time in prison.

But while arrests have fallen in some places, that's little help to the many people convicted of marijuana-related crimes in years past.

Over the past four years, at least 15 states have enacted laws providing for the expungement of those convictions, according to the National Conference of State Legislatures.

Click to view interactive version

Besides the expungement bill in New York, California is requiring its attorney general to review the cases of hundreds of thousands of people eligible to have convictions cleared as part of that state's marijuana legalization.

In Washington state, people with marijuana-related misdemeanors can go to court and apply to have those convictions vacated under a new law that went into effect in July.

"We had issues where people who when they were teenagers were caught smoking weed and now they have kids, and they're not allowed to go on a field trip with their kids because they had a marijuana conviction," says Democratic state Sen. Joe Nguyen, whose district includes West Seattle and who sponsored that bill.

Washington was one of the first states to legalize recreational pot in 2012, but the original initiative didn't provide relief for people with old convictions, a move advocates hoped would keep law enforcement organizations from opposing legalization, according to Nguyen. Even though expungement bills have been introduced since, Nguyen says no one has championed them until now.

There's "a very broad and strong sense in the public that these are not the types of crimes that we need to punish people forever for," says Democratic Michigan state Sen. Jeff Irwin, who represents Washtenaw County, including Ann Arbor, and has introduced a similar bill in that state.

While Nguyen's bill requires people to apply to have their convictions vacated, Irwin's bill would automatically set aside convictions for cannabis use and possession. Voters in the Great Lakes State approved marijuana's recreational use in November 2018, but that ballot measure also did not include expungement provisions because the Michigan Constitution prohibits petitions from having more than one objective, according to Irwin.

Despite Democratic Gov. Gretchen Whitmer's promise to expunge pot-related convictions after legalization, Michiganders are still waiting.

Several bills, Irwin's among them, have been introduced but have seen little movement. Irwin insists there's bipartisan support for the effort, but admits there has been some struggle over details like which offenses should be eligible and whether clearing people's records should be automatic.

There's been similar wrangling in New Jersey, where Democratic Gov. Phil Murphy in August conditionally vetoed expungement legislation, saying the proposed law put too much of the burden on those seeking expungement.

He sent the bill back to the Legislature with suggestions for making expungement automatic, but in September, the state's Senate failed to vote on the changes, instead introducing another version of the legislation, which is stalled.

Despite the roadblocks his own bill has faced, Irwin is optimistic about finishing the work of legalizing cannabis in Michigan.

"To me, that means making sure that we exonerate the many, many people who've been hurt by the war on drugs," he says.

Unequal Enforcement

Nguyen and Irwin say inequities in how marijuana prohibition has been enforced are a major reason they introduced their bills.

Between 2001 and 2010, African Americans were 3.73 times more likely than whites to be arrested for marijuana possession nationally despite using the drug at similar rates, according to a 2013 ACLU report.

In places like Monroe County, Michigan, just south of Irwin's own district, that figure skyrockets to 15.4 times as likely.

"When you take that fact and you rinse and repeat year after year after year, what we have done is we have really focused the pain of the war on drugs and cannabis prohibition on communities of color," Irwin says.

Illinois is hoping to undo some of that damage after becoming the first state to legalize recreational marijuana legislatively rather than by public referendum in June. Between 2001 and 2010, African Americans were 7.56 times more likely to be arrested for marijuana possession than whites in the Prairie State, according to the ACLU report.

As many as 770,000 records could be eligible for expungement under the new law, which grants automatic clemency to anyone convicted of possessing up to 30 grams of the drug, according to Democratic state Sen. Heather Steans, whose district includes part of Chicago and who is one of the bill's sponsors.

The law also contains several "social equity" provisions. People with marijuana convictions or who come from neighborhoods with high rates of arrest and incarceration related to cannabis will be given "social equity status," a factor Steans says will account for 20% of the criteria to get a license to sell recreational marijuana.

"Social equity" applicants who are approved for licenses will then be able to access loans and grants from a cannabis development fund to access training and technical assistance, offset fees, and get their businesses up and running. Neighborhoods that qualify for "social equity status" include parts of St. Louis, Springfield and Bloomington, among other cities.

Irwin says he's already working on legislation to establish a social equity fund in Michigan similar to the measure in Illinois.

Activists are increasingly pushing for legalization bills "to have at least some racial justice lens and criminal justice lens" like Illinois', says Charlotte Resing, a policy analyst in the ACLU's National Political Advocacy Department.

Resing's office has been working, along with a constellation of other groups, on advocating for the Marijuana Opportunity Reinvestment and Expungement Act, introduced in Congress in July by Sen. Kamala Harris, D-Calif., and Rep. Jerry Nadler, D-N.Y.

That bill would not only legalize marijuana nationally but require federal courts to expunge convictions, ban the denial of federal benefits due to a previous conviction, and make entry into the cannabis industry easier for those most impacted by the war on drugs.

"We wanted some reinvestment in these communities that have really had their lives ... turned upside-down by an arrest, by overpolicing, by a conviction, by serving a sentence," Resing says.

Of course, not everyone agrees with these efforts. Republican state Rep. Brad Klippert, who represents Kennewick, Washington, opposed that state's new expungement law. Klippert, who is also a sheriff's deputy in the Benton County Sheriff's Office and works as a school resource officer, says one of the reasons he voted against the bill is the message he believes it sends to kids.

"It's a tragedy because now more and more kids think, 'Oh, it's no big deal ... so why shouldn't I partake in this dangerous drug,'" he says.

Steven D. Strachan, executive director of the Washington Association of Sheriffs & Police Chiefs, says his organization also opposed Nguyen's expungement bill, in part, because there already are ways to get misdemeanor convictions undone in Washington. Unlike those avenues, the state's new law removes judges' discretion to consider an applicant's specific circumstances, he said.

His organization and other law enforcement groups also oppose recent expungement efforts because the provisions are aimed at helping people who broke the law.

"When people were arrested for marijuana, whether it was two years ago, eight years ago, 12 years ago — it was illegal. They were arrested for an illegal offense," says Chief Steven Stelter, president of the Illinois Association of Chiefs of Police, which fought the expungement provisions in that state's marijuana legalization bill. "Who are these legislators today so arrogantly saying the lawmakers from yesterday were wrong?"

Tearing Up the 'Paper Prison'

For expungement advocates, changing the law is often not enough.

When California first legalized recreational pot in 2016, the referendum included an expungement provision. But in early 2018, when now-former San Francisco District Attorney George Gascón asked how many of the more than 9,300 eligible people in the city had used the provision to escape what he calls the "paper prison," the answer was 23, according to Alex Bastian, deputy chief of staff in the San Francisco district attorney's office.

"The problem with the system in place is you would have to ... hire an attorney and pay for an attorney; you would also have to take time off from work and come in and do it yourself," Bastian says.

The San Francisco district attorney teamed up with technology nonprofit Code for America to develop a system to automatically expunge the marijuana convictions of those 9,300 people, a process his office completed in February. In August, the district attorney of Cook County, Illinois, announced she would be partnering with Code for America to do the same.

Manhattan's district attorney, along with Goodman at the Legal Aid Society, is taking a different tack.

Frustrated with what Goodman calls "the arduous process of application-based sealing," they and a host of other organizations filed what they consider a "groundbreaking" class action in New York Supreme Court to get over 300 eligible marijuana convictions in Manhattan sealed all at once.

Justice Carol Edmead ordered the convictions sealed in July, and Goodman says her organization is looking at filing similar suits elsewhere.

"I really see sealing people's records and helping them with moving on with their lives as a way to counteract the systemic racism that still exists even decades later," Goodman says.

For Loy, whose felony turned out to be ineligible for expungement in Illinois because he was convicted of delivery rather than possession, the path forward is less clear.

"It sucks. And it's embarrassing. You know how much I've had to rely on my parents and my family throughout my life?" he says. "I just want to go out on my own two feet and do what I want to do."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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