Even though marijuana is approved for medical use in 37 states and legal for recreational use by adults in 18 other states and Washington DC, more than 40,000 non-violent cannabis convicts remain incarcerated. That’s because there are still places where cannabis isn’t legal and clemency laws in some states are not comprehensive enough or haven’t kicked in yet.
This means that even though states are benefitting from the taxation of medical and recreational marijuana, many people continue to serve long sentences for minor marijuana-related convictions. That’s why activists are demanding that the legalization of marijuana include ample provisions for releasing people serving time and expunging records for former convicts.
Why Is Clemency For Marijuana Offenses Important?
Clemency is not just important for people that are currently incarcerated because marijuana convictions limit opportunities for offenders for the rest of their lives. Even a single criminal conviction can drastically reduce access to housing and too many types of employment such as teaching.
There are attorneys that are successfully representing individual offenders seeking to have their records expunged in states where cannabis has been decriminalized even without a blanket retroactive bill. Unfortunately, it’s usually only possible for people that have “marijuana possession” only records, and the cost of the legal proceedings can get very high.
The War On Drugs and Disparate Impact On People Of Color
One of the many reasons why cannabis legalization must include release and clemency for marijuana offenses is restorative justice for the victims of the racist policies of the “War on Drugs.” According to the National Organization for the Reform of Marijuana Laws (NORML), “African Americans are arrested for violating marijuana possession laws at nearly four times the rates of whites, yet both ethnicities consume marijuana at roughly the same rates.”
A recent New York City Legal Aid study revealed that 94% of the marijuana arrests in 2020 were people of color. These statistics shed light on how convictions for minor marijuana offenses have had a disparate impact on the earning potential and housing opportunities for people of color.
The Clemency Movement In The States
There have been efforts by some states to include provisions in their legalization and decriminalization legislation that address this long-term injustice with retroactive clemency provisions. California, Illinois, Massachusetts, Arizona, Vermont, and Colorado have enacted some policies for expungement, but they don’t go far enough to fully address the problem.
Virginia’s law also includes provisions for the release and automatic expungement of criminal records for people serving time for some marijuana offenses, but in a limited way. Racial justice advocates are pushing for states to go further when passing these laws to provide prompt and comprehensive clemency for a wide range of marijuana offenses to mitigate the harm that’s been done to communities of color throughout the country.
This is why Governor Inslee of Washington signed a law granting clemency to individuals in and out of prison that had a single marijuana misdemeanor conviction. The most comprehensive law to date in New York’s Marijuana Regulation and Taxation Act (MRTA) retroactively eliminates all marijuana felonies and misdemeanors from the state’s penal code, releases those serving time, and expunges the records for all convictions.
The state of Connecticut recently legalized marijuana, but its automatic expungement provisions will not take effect until the beginning of 2023. The bill also provides for individual petitions beginning July 1, 2022, for marijuana paraphernalia and small amounts of cannabis.
Clemency On A National Level
President Biden expressed his support for full clemency for all marijuana offenders during the presidential primaries but hasn’t taken action to issue pardons or recommend legislation since he’s been in the Oval office.
That’s why so many groups are putting pressure on the President to issue a general pardon for all non-violent marijuana federal offenses on a federal level. Groups such as NORML, Minority Cannabis Business Association (MCBA), National Cannabis Industry Association (NCIA), and the United States Cannabis Coalition (USCA) believe there is ample precedent for such action based on the pardons issued by Gerald Ford and Jimmy Carter to violators of the United States Selective Service Act (USSSA) that evaded the draft for the Vietnam War.
Cannabis Administration and Opportunity Act (CAOA)
Senators Chuck Schumer, Ron Wyden, and Corey Booker recently released a draft of the COCA, a bill that would end the criminalization of marijuana on a federal level. Senator Schumer believes the bill will also “repair damage done by the “War on Drugs’ to communities of color.”
The law, if enacted, will remove cannabis from the list of federal controlled substances, expunge prior records, allow petitions for resentencing and remove immigration-related penalties. The bill imposes a federal marijuana tax with funds earmarked for supporting marijuana businesses in communities that were most greatly impacted by marijuana prohibition.
It’s important to note that the bill will not force a state to legalize or decriminalize marijuana, leaving that decision to state legislatures. The bill has little chance of getting the votes it needs to pass in Congress in its current form and President Biden has indicated that he will not sign it.
The law is criticized as falling short by social justice groups who argue that it has exclusionary language that prohibits people with marijuana convictions from working in the industry. Other stakeholders slammed the bill for leaving out potency caps, not banning advertising, and not excluding the participation of alcohol and tobacco companies in the industry.
The Road Ahead
It’s unlikely that any federal legislation on cannabis will be passed before the midterm elections, even though 68% of Americans support the legalization of marijuana nationwide. The next stage is likely to pass a cannabis bill in Minnesota, with a ballot initiative in 2022 that will expunge low-level convictions for marijuana offenses.
The path to legalization in all fifty states and federally is clear, but the process is not moving quickly enough for the tens of thousands of people that remain incarcerated for nonviolent cannabis convictions and many more people whose lives are limited due to their criminal records.