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Hawai'i State Representative David Tarnas Introduces Legislation to Create a State-Initiated Process to Expunge Cannabis Records

Sarah Gersten • Jan 18, 2024

Statement from Sarah Gersten

Executive Director and General Counsel

Last Prisoner Project 


RE: Representative David Tarnas Introduces Legislation to Create a State-Initiated Process to Expunge Cannabis Records 


January 18, 2024


The War on Drugs and the criminalization of cannabis have created a racially inequitable criminal legal system that has disproportionately impacted people of color, including Native Hawaiians. We at the Last Prisoner Project (LPP) believe that no one should suffer the collateral consequences of cannabis criminalization. We commend Representative David Tarnas for working with us to introduce HB 1595, which will begin to address the injustices perpetrated during cannabis prohibition through the creation of a state-initiated expungement process for individuals with a criminal record for cannabis possession. 


When an individual has a criminal record for cannabis, the collateral consequences linger for a lifetime without access to expungement. Individuals with a criminal record are often restricted from employment, housing, political participation, public assistance, education, and more. These restrictions hinder the wellbeing and safety of entire communities, particularly communities of color who have been systematically targeted by law enforcement during cannabis prohibition. A key finding from a  2018 Office of Hawaiian Affairs report on prison reform highlighted the disproportionate incarceration rate of Native Hawaiians, who constitute 37% of the adult incarcerated population while making up just 18% of the state’s adult population. 


The Last Prisoner Project (LPP) has worked in Hawai’i for the past two years to ensure that retroactive relief is provided for those who have been criminalized by prohibition. In 2022, LPP presented evidence-based policy recommendations that were endorsed by Hawaii’s Dual Use of Cannabis Task Force. LPP’s recommendations outlined state-initiated processes to provide retroactive relief for individuals with cannabis convictions and led to LPP being named in Concurrent Resolution No. 51/House Resolution No. 53, which urged Governor Green to initiate a clemency program for individuals who are still under supervision for a cannabis conviction. 


A key component of HB 1595, is that it does not get ahead of the state on the question of legalizing adult-use cannabis, nor does it rely on the state passing a legalization bill. Instead, the bill intends to close the uptake gap between people who have a criminal record for cannabis possession and are already eligible for expungement under existing law but have been unable to obtain relief.

 

National research shows that less than 6.5% of people who are already eligible for an expungement ever have their records expunged because of the cumbersome nature of the record clearance process. Representative Tarnas’ bill will address this issue by having the Attorney General’s Office initiate an expungement process for individuals with a criminal record for cannabis possession, an offense which was decriminalized in 2019 and poses no threat to public safety. In fact, the creation of a state-initiated record clearance process promotes public safety by expanding access to employment, housing, and educational resources that allow for community reintegration and stability. Empirical data demonstrates that five years after benefitting from record clearance, individuals are actually less likely than members of the general public to engage in criminal conduct.


“As the legislature contemplates the legalization of cannabis for adult use, I believe the state has an obligation to update our criminal justice system to ensure that individuals who continue to suffer the consequences of an outdated law have an opportunity to finally move on with their lives. HB 1595 is limited to one offense with a defined population and allows for a reasonable and limited expansion of the existing expungement process,” said Representative David Tarnas.


“While some may consider a simple possession charge a “minor” criminal offense, having a criminal record is anything but minor. It limits a person’s ability to obtain an education, employment, housing, and public assistance. We know the petition process is broken. Creating a procedure that allows the state to start the process on behalf of the individual is imperative to actually provide the relief Hawai’i has already decided these individuals deserve,” said Sarah Gersten, Executive Director and General Counsel at the Last Prisoner Project.


Prior to 2019, simple possession of cannabis could have landed someone in jail. Even for those lucky enough to avoid that penalty, their arrest still generated a criminal record along with numerous collateral consequences. HB 1595 ensures that individuals who continue to suffer the consequences of a penalty the state changed its mind about enforcing in 2019 are applied evenly so no one is left behind. We urge the HawaiĘ»i State Legislature to support HB 1595 to provide retroactive relief for individuals criminalized by cannabis possession and begin to dismantle the racial injustices that the criminal legal system has perpetuated during prohibition. 


ABOUT LAST PRISONER PROJECT
The Last Prisoner Project is dedicated to freeing those incarcerated due to the War on Drugs, reuniting their families, and helping them rebuild their lives. As laws change, there remains a fundamental injustice for individuals whose conviction is no longer a crime. We work to repair these harms through legal intervention, constituent support, direct advocacy, and policy change. 


Visit www.lastprisonerproject.org or text FREEDOM to 24365 to learn more.

Last Prisoner Project Supports the Reintroduction of the Cannabis Administration and Opportunity Act (CAOA)

By Stephen Post • 02 May, 2024
This week, Senators Booker, Schumer, and Wyden reintroduced the Cannabis Administration and Opportunity Act (CAOA), comprehensive legislation that would legalize cannabis federally, expunge cannabis records, and release cannabis prisoners. Here are just a few highlights to help breakdown this bill: CAOA, if passed, could finally decriminalize cannabis on the federal level. Federal courts would have 1 year to expunge or seal arrests, convictions, and juvenile delinquency adjudications for most non-violent federal cannabis offenses. They'd also be required to educate recipients on the effects of their expungement(s). Some federal cannabis tax revenue would be directed to organizations that help people secure state-level cannabis expungements. The Bureau of Prisons would have 60 DAYS TO RELEASE (and vacate the convictions of) individuals serving tiem for most federal cannabis-only offenses. Individuals whose convictions don't fall under those guidelines, or whose sentences were enhanced because of prior cannabis convictions, would be able to petition the court for a reduced sentence. The feds wouldn't be able to deny people federal public assistance because of cannabis use, possession, or convictions. They also would not be able to consider cannabis a controlled substance for the purposes of immigration proceedings. Read more about the CAOA here and read recent coverage in Filter Mag and Marijuana Moment of our 420 Unity Day where we joined with advocates to talk to Sen. Schumer and other lawmakers about the CAOA and other efforts to enact cannabis justice

DEA Moves to Officially Reschedule Cannabis

By Sarah Gersten • 30 Apr, 2024
Rescheduling is not legalization, and the existing penalties for cannabis remain unchanged. In October of 2022, President Biden made a series of historic cannabis-related executive actions , including initiating a review by the Department of Health and Human Services (HHS) and the Department of Justice on how cannabis is scheduled under federal law. In August 2023, HHS recommended rescheduling cannabis from a Schedule I drug to a Schedule III drug and referred it to the Drug Enforcement Agency (DEA) for final approval. Today, the DEA announced its decision to approve the HHS recommendation to reschedule cannabis to Schedule III. The proposal now goes to the White House Office of Management and Budget (OMB), to review the rule. If approved by OMB, the proposed rescheduling would go to public comment before being finalized. This historic announcement is the culmination of years of advocacy by Last Prisoner Project (LPP) and other advocacy groups to push the federal government to better reflect the public’s view on cannabis. While the move is undoubtedly a step forward for the movement, it does not meet LPP’s goal to fully remove cannabis from the Controlled Substances Act and its associated criminal penalties. So then, what exactly does this schedule change mean for cannabis justice reform? While the action could result in some favorable tax and banking reform for the cannabis industry and more dedicated research for cannabis patients, there are no changes in how the criminal legal system punishes cannabis users. Rescheduling is a peripheral change that signals the reevaluation of cannabis, but not the release of cannabis prisoners or relief for those who continue to be burdened by the lasting consequences of the carceral system. In short, this announcement represents progress but not justice. Despite not achieving full legalization, we must use this historic moment to push the fight for cannabis justice forward by broadening the scope of Biden’s cannabis clemency action, working with Congress and certain administrative agencies to both provide retroactive relief and to reduce prospective cannabis criminal enforcement, and incentivizing states to provide broad retroactive relief, particularly in states that have adopted a fully legal cannabis market. Learn more about ways cannabis justice advocates can leverage this change to advance reforms in our recent memo . LPP is committed to continuing the fight for cannabis justice until everyone is fully free from the harms of the War on Drugs. This means advocating for cannabis to be fully descheduled. To ensure we keep the pressure on descheduling, retroactive relief, and full legalization, Last Prisoner Project helped organize the largest bipartisan group of cannabis advocates in Washington D.C. on April 18th, 2024 for our 420 Unity Day of Action to urge Congress and the President to take further action. Last Prisoner Project believes that complete descheduling is a necessary step towards correcting past injustices and creating a fair and equitable criminal legal system. We will continue to leverage the momentum achieved from our advocacy to ensure that individuals burdened with past cannabis convictions have their records expunged and all cannabis prisoners are released, regardless of the federal scheduling decision.

President Biden Grants Clemency to 16 Non-Violent Drug Offenders, But No Cannabis Offenses Included

By Stephen Post • 27 Apr, 2024
President Joe Biden made a statement Wednesday announcing a decision to pardon 11 people convicted of non-violent drug charges and commuted the sentences of five others. "America is a nation founded on the promise of second chances," he said . "We also recommit to building a criminal justice system that lives up to those ideals and ensures that everyone receives equal justice under law." Despite this positive use of his clemency powers, President Biden again failed to include any people still in prison at the federal level for cannabis offenses which is estimated to be at least 3,000 individuals. Even though he has provided record relief to almost 13,000 people with his expanded cannabis possession pardons, the President has failed to release a single person in prison for cannabis. Last Prisoner Project Executive Director, Sarah Gersten said, "While we are encouraged to see the President use his clemency power to commute the sentences of those incarcerated for drug offenses, we are hopeful that the administration will fulfill their promises both to use the clemency power more robustly as well as to commute the sentences of those still incarcerated for cannabis." "The Administration has made it clear that cannabis reform is a priority and one that will energize their electorate. To truly make an impact that will sway voters come November the president needs to take action to release the estimated 3,000 individuals still incarcerated for cannabis federally." We hope that President Biden recognizes that releasing people with cannabis offenses doesn't require legalization. They demand executive action. If he is looking for the next batch of candidates for clemency, we have already sent him a list of deserving individuals whose petitions are sitting with the Office of the Pardon Attorney. He simply needs to act on them. We recently rallied advocates at the White House on our 420 Unity Day of Action to demand their freedom and encourage the public to help tell Congress and the President to take further action.
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