As more states legalize medical or adult-use cannabis and pass decriminalization laws, many are wondering about the millions of individuals with cannabis-related charges on their record. Because criminal records are accessible to the public, they can have long-term negative impacts on a person's life. A prior arrest or conviction can limit employment, housing, education, and immigration opportunities. While the majority of the population has access to some form of legal cannabis, many people across the United States still pay the price of its criminalization. That's a problem.
Now that more people are recognizing the problem, more states are allowing individuals to have their cannabis records expunged. Expungement refers to the legal process of clearing arrests, charges, or convictions from a person's record. Expungement allows individuals to move forward with their lives, free of the barriers and hardships resulting from a criminal record. Here, we'll dive deeper into the nuances of expungement and the ways it may help repair some of the damage caused by the war on drugs.
What's the difference between sealing and expunging a record?
The terms “expungement” and “sealing” are often used interchangeably, but there are key differences between the two. An expungement order removes or destroys one's record entirely as if the record never existed. When a record is sealed, it is removed from the public record and becomes inaccessible to those conducting background checks, such as potential employers. However, the record is not permanently destroyed and can be unsealed through a court order.
Expungement is similar to putting a piece of paper through a shredder, whereas sealing a record is similar to locking something in a box and only a few people have the key.
Who is eligible for expungement?
Expungement proceedings typically occur at the local and state level, and each jurisdiction has different requirements for who is eligible for expungement and which types of criminal charges can be cleared. In many jurisdictions, a state may allow or even mandate expungement for certain criminal convictions, but the local governments are tasked with carrying out the expungement process. Expungement of federal offenses are uncommon, and according to the American Bar Association, “expungement orders from federal courts are extremely rare, and there is no federal statute governing its application at the federal level.”
In general, cannabis expungement laws aim to clear the records of those convicted of an offense that is no longer considered a crime. However, the types of charges eligible to be cleared vary by state. Some states limit expungement to small-scale possession charges, whereas other states allow more significant cannabis charges to be removed from one's record.
What is the process for clearing a record?
Expungement can be a complex, time-consuming, and expensive process. While each jurisdiction has different procedures for carrying out expungement orders, there are a few basic steps that apply to all expungement proceedings. For areas where automatic expungement is not available, individuals must petition to have their record cleared. After determining eligibility for expungement, a person must fill out an application or file a petition to the relevant court.
Many people hire an attorney who specializes in expungement for this process, as the applications are often complicated and require a number of additional legal documents. Next, a judge reviews the application and makes a decision. The judge may request a court hearing to further determine eligibility if needed. If granted expungement, the judge then issues an expungement order, and the record is destroyed.
Why is automatic expungement so important to cannabis advocates?
Expungement is an essential step in repairing the harms of the war on drugs and removing the social and economic barriers that a cannabis-related criminal record presents in an individual's life. However, many believe that simply enabling expungement is insufficient on its own, and the responsibility of identifying and clearing all qualifying cannabis-related charges should fall on the government. Automatic expungement occurs when a state passes a law to automate the clearing of certain criminal records, thus eliminating the need for individuals to petition the court themselves.
Automatic expungement shifts the burden away from the individual and ensures that all who qualify can have their records cleared, regardless of income or access to an attorney. Between filing costs and legal fees, clearing one's record can cost up to thousands of dollars, depending on the jurisdiction.
Another issue is that many people are unaware that they qualify for expungement. Because all arrests are documented on one's rap sheet, regardless of whether it led to a conviction or not, there are many who are eligible for expungement but are unaware that they even have a criminal record. Automatic expungement addresses both the information and monetary barriers that prevent individuals from having their cannabis-related records cleared.
Technology and automatic expungement
In recent years, local and state governments have leveraged technology to increase the efficiency of expungement proceedings and reduce the strain on government employees who were previously tasked with reviewing each case individually. For example, Code For America developed Clear My Record, a technology that reviews and automatically identifies criminal convictions that qualify for sentencing relief under California's Proposition 64. Clear My Record can determine the eligibility of “thousands of convictions in just a few minutes.” Code for America has worked with counties in California and Illinois to help automatically expunge thousands of cannabis convictions, and they are looking to scale their efforts to additional jurisdictions.
How many people stand to be affected by cannabis expungement laws?
There are millions of people in the United States who potentially stand to benefit from cannabis expungement laws. According to the ACLU, over 6 million cannabis-related arrests were made between 2010 and 2018. In Illinois alone, nearly 800,000 residents are eligible for expungement under the state's new legalization framework. However, the majority of states do not have cannabis-specific expungement laws. While twenty-seven states have taken steps to decriminalize cannabis, only nineteen states have laws that allow individuals to seal or expunge their cannabis-related records.
Expungement allows those arrested and/or convicted of cannabis-related crimes to clear their record, while also presenting an opportunity for local and state governments to aid in remediating the damages of cannabis criminalization. Expungement is not currently available to all individuals with prior cannabis charges, but more states are beginning to explore reforming their criminal justice and expungement efforts.