Even in the United States, new research is needed that more accurately evaluates real differences across the states in terms of the legal status of possession offences, how these laws are enforced and interpreted by police and prosecutors, how these differences get translated into arrest patterns, and how these differences in laws and their enforcement are perceived by citizens. Only then can we hope to accurately assess the real impact of a policy change on the primary outcomes of interest: consumption and harms. Strides are being made within particular countries to better understand these issues, but much work remains.Cannabis criminalization disproportionately harms minorities. African Americans composed 30% of cannabis arrests while comprising 14% of users between 1990 and 2002 . Despite consuming cannabis at similar rates to Whites in 2018, African Americans were 3.64 times likelier to face arrest for cannabis offenses . Criminal justice system contact negatively affects health , social welfare , and economic outcomes . Holding a criminal record imposes over 44,000 potential consequences . Criminal justice advocates have increasingly advocated for policies decriminalizing or legalizing cannabis possession and sales at the state level to reduce arrests; such policies prevent future harm but fail to assist existing record-holders. As a result, some states have provided general and cannabis-specific criminal record relief for former cannabis offenders . Forty-five states and Washington DC allow some degree of expungement , which is defined as the destruction or sealing of criminal records . Expungement lowers recidivism ,rolling greenhouse benches enhances earnings and employability , and improves people’s ability to obtain work, housing, and education funding .
Expungements are less expensive than work training programs , and improve economic outcomes since holding a criminal record lowers employability and earnings over time . Expungement is relatively underused. A 2020 study found that under 20% of eligible people with a record of conviction in 10 states petitioned for expungement . This low uptake is driven by a lack of awareness, the complexity involved in navigating the expungement process, and regulatory and financial hurdles . In 2016, the American Bar Association found that 13 states required either payment of a fee for expungement, or payment of all existing fines or fees related to their conviction, to qualify for relief . A majority of states’ expungement systems rely on petitions, although some, such as California, have automated expungement. Additionally, some states require that persons first obtain a Certificate of Eligibility to apply for expungement, which often requires its own process and fees. While some states offer expungement programs that address a broad range of offenses, other states offer expungement programs specific to cannabis records. There is limited research assessing how such programs operate in practice or the extent to which record-clearing processes are automated across states . We analyzed expungement statutes in states that decriminalized or legalized cannabis for medical and or recreational use to determine the availability and accessibility of expungement relief. We defined expungement as record sealing or destruction available to former cannabis offenders. We assessed whether states had automated or petition-based processes, as well as waiting periods, using model guidelines created by the nonprofit organization Alliance for Safety and Justice . We also reviewed policies to identify whether states that provide conviction record relief offered general expungement, general drug expungement, or cannabis-specific expungement programs.
We assessed whether states required Certificates of Eligibility to begin the expungement process, relied on pardons to grant relief, or vacated court rulings to provide expungement , a system known as vacatur. A review was also conducted of potential financial barriers, including administrative fees, and payments of existing financial obligations associated with convictions. Given the low expungement relief rates identified in previous research, we anticipated that most states would have expungement programs that allowed cannabis record relief, but that they would be petition-based and involve waiting periods and financial barriers.We conducted a retrospective qualitative survey of expungement laws in the US of states, and Washington DC, that had decriminalized or legalized cannabis use. Our goals were to determine whether states allowed expungement of prior cannabis offenses, whether states had generalized offense expungement regimes, general drug offense expungement regimes, cannabis-specific expungement regimes, or a combination of regimes, whether they had automated or petition-based expungement, the length of waiting periods required before seeking expungement relief, and the existence of financial requirements for persons seeking relief. Our focus on expungement automation and waiting periods were informed by guidelines produced by the Alliance for Progress and Safety . As of September 2022, 26 states and Washington DC had decriminalized cannabis possession , 38 had legalized medical cannabis and 20 had legalized recreational cannabis . We refer to the 39 states and Washington DC with some form of cannabis decriminalization or legalization, representing 40 jurisdictions, collectively referred to as “states” in this paper. To identify expungement policies, we collected each government’s statutes pertaining to general expungement, general drug expungement, and cannabis-specific expungement from state legislative websites or the NexisUni database.
We also coded the pardon application for North Dakota to capture its provisions, a web page from the Pennsylvania Board of Pardons to obtain relevant data for cannabisspecific pardon relief, and legislative text applying to cannabis expungement provisions in Vermont when the statute itself could not be located. Search terms included “cannabis”, “marijuana”, “expungement”, “record seal”, “set aside”, “vacatur”, legalization”, “recreational marijuana”, “retail marijuana”, “medical marijuana”, “decriminalization”, “statute”, and “pardon.” Google searches using these terms in combination with each state were used to find statutes from state government websites. Statutes that were not found through a web search were triangulated using government or legal websites that provided statute codes or names, then accessed through state legislative websites or NexisUni. If a state had expiring statutes that would be superseded by a new statute, we excluded the expiring statute and analyzed the new legislation. Only Washington State was in this category . Statutes were selected if they were relevant to general, drug, or cannabis-specific expungement regimes related to convictions, wait periods, fees, and fines. The research was approved by the University of California, San Francisco Institutional Review Board . The research used data that can be accessed freely by the public without special permission or application, the information was defined as not “private” and not involving human subjects. One author , who had previously written a report on state tobacco control policymaking that required interpreting legal regulations, and analyzing their impacts , imported the text of each statute into Atlas.ti for descriptive coding between February 25, 2021, and August 25, 2022. Statutes were iteratively coded to determine the characteristics and restrictions of state expungement programs until default codes were developed for program component themes. The identified themes included the type of substance , the mechanism , waiting period , and financial requirements . We indicated whether expungement was automated, and the presence and length of waiting periods for all states,commercial drying racks using guidelines created by the Alliance for Progress and Safety . Details relevant to waiting periods were further refined through a review of records. The resulting codes categorized statutes by whether they targeted relief for convictions, general offenses, general drug offenses, cannabis-specific offenses, or provided non-conviction expungement mechanisms. We classifiedprograms providing relief for cases that were deferred in exchange for probation, or for participation in treatment programs, as “conviction expungement” since a sentence was assigned, and served, to avoid entry of a guilty verdict into government records. Waiting periods were categorized by expungement program type, by their duration, and by the level of offense targeted . Financial requirements were coded to reflect whether they constituted an administrative fee or involved a financial obligation related to conviction that had to be resolved before expungement relief was received. The research team reviewed a subset of initial statutes together, then after an agreement was reached regarding themes and categorizations, the remaining statutes were read and reviewed by a single author . When there was uncertainty regarding the coding or categorization of a statute or law, the authors discussed it until they reached a consensus.General expungement waiting periods could extend up to 20 years. For violations and infractions, waiting periods ranged from less than 1 year to 5 years, for misdemeanors waiting periods ranged from less than 1 year to 10 years, and for felonies waiting periods ranged from 1 year to 20 years . States often set waiting periods that varied by offense and severity . In total, 33 governments set waiting periods for petition expungement, generally setting multiple durations based on offense level and type. The most common waiting periods were 1-2 years , 2-5 years , and 10 or more years .
Michigan automatically expunged general misdemeanor convictions after 7 years and felonies after 10 years, Pennsylvania expunged misdemeanors after 10 years, South Dakota expunged violations and misdemeanors at 5 years, and Vermont expunged convictions within 30 days for people who were between the ages of 18-21 years at the time they were charged. Arkansas permitted courts to immediately expungean offender’s record after completing drug or other court-ordered treatment . Four states explicitly established waiting periods for expungements after a pardon. Two states, Colorado and Illinois, allowed expungement at any time following a pardon. Alabama allowed expungement 180 days after a felony pardon, and Maryland required a 10-year waiting period before records associated with pardoned offenses were expunged.The 7 states that set waiting periods for cannabis-specific expungement programs set them to shorter durations relative to waiting periods for general expungement, as shown in Table 4. The 6 states with petition mechanisms set waiting periods ranging between no wait to 4 years. The 3 states with automated expungement waiting periods set waiting periods ranging between 1-2 years or tied waiting periods to the date of the offense. Three states with automated expungement, California, Illinois and New Mexico, set waiting periods for the expungement of cannabis records. Illinois automatically expunged certain cannabis-related offenses after 1 year, while California and New Mexico expunged certain cannabis-related offenses after 2 years. Illinois expunged cannabis offenses dated between 2013 and 2019 by 2021, offenses dated between 2000 and 2013 by 2023, and offenses dated before 2000 by 2025. Arizona and New Jersey imposed cannabis-specific waiting periods for expungement, with New Jersey also requiring a 3-year wait, completion of probation, or resolution of financial assessments, for cannabis offenses involving distribution or intent to distribute.Of the 34 states offering general expungement programs, 19 required that people pay administrative fees to procure relief, as shown in Table 5. Administrative fees collectively refer to filing and processing fees incurred during the expungement process. Among these 19, 11 charged a filing fee, 13 instituted a processing fee, and 5 states required both a filing fee and a processing fee. Nine of these 19 states charging administrative fees offered waivers for indigence. Oklahoma reimbursed filing fees upon expungement, and West Virginia waived administrative fees if an applicant participated in a treatment or diversion program. Nevada and Rhode Island did not charge administrative fees for expunging offenses that had been decriminalized at the state level. Compared to general expungement programs, cannabis-specific expungement programs were less likely to require payment of administrative fees. Among the 21 states with cannabis-specific expungement programs, only 4 required payment of a filing or processing fee . Three states required payment of filing fees to have records expunged, and 2 others required payment of processing fees. Delaware was the only state that set both filing and processing fees. Arizona offered an indigent waiver for cannabis offenses, and Virginia reimbursed filing fees after expungement. Three states required that a person seeking expungement first obtain a Certificate of Eligibility: Illinois, Louisiana, and Utah. Of these three, Utah imposed associated administrative fees but waived certificate requirements for offenses involving cannabis possession as well as for persons previously charged for using cannabis for qualifying health conditions. None of the pardon-based expungement programs required that pardon petitioners or recipients pay fees to receive an expungement. Seventeen states required that people seeking expungement pay other legal financial obligations to secure relief, as shown in Table 6.Of these, 16 required that any outstanding financial judgments, legal obligations, and restitution be paid before granting general expungement, and New Jersey required these obligations be paid before granting cannabis-specific relief . Although Oregon historically required that applicants for cannabis record expungement pay outstanding financial obligations, the state repealed that requirement in 2022. Only Illinois explicitly permitted the expungement of records if financial obligations remained unpaid.