• Sarah Gersten

The Case for Automatic Expungement

This week the Last Prisoner Project joined cannabis and criminal justice reform advocates in testifying in support of automatic expungement legislation.

Yesterday, the Last Prisoner Project, along with the Marijuana Policy Project, and other cannabis justice reform advocates testified in support of Maryland House Bill 83, which would provide for expungement of marijuana possession convictions in Maryland. Unlike recently passed expungement bills in other states, HB 83 creates no limit on the amount of cannabis in connection with the offense to be eligible for expungement. And as is becoming increasingly common as more and more states tie broad criminal justice reform provisions into legalization efforts, HB 83 provides for automatic expungement. These are two critical components of expungement reform, particularly in the context of a cannabis offense.

While cannabis is now legalized in some form in a majority of states, the negative effects of a cannabis offense continue to impair the lives of millions of Americans. A cannabis offense can carry lifelong consequences that can impact an individual’s access to employment, housing, voting, financial stability, social assistance programs, among other opportunities. The consequences of a criminal record also come at a great cost to our economy. The estimated cost of employment losses among people with criminal records is as much as $65 billion per year in terms of gross domestic product. And individuals with cannabis offenses are more often than not barred from participating in and deriving economic benefits from the burgeoning legal industry. There is also the fundamental injustice that in some states individuals are denied access to expungement or sealing for possessing amounts far less than what legal operators can now distribute daily.

There is, however, a growing trend toward easing the process for people to seal or expunge past marijuana convictions. Unfortunately, while these laws do simplify the process, only a fraction of eligible individuals are using them. And this is not limited to marijuana offenses. Legal analysts state that many Americans do not take advantage of the increasing number of expungement and record sealing laws.

Part of this problem is lack of access to information. Many individuals may simply not realize they are eligible for expungement or sealing. The preliminary step of determining eligibility involves understanding a complicated state statute--a daunting task for those without formal legal training. Additionally, the cost of expungement is often prohibitively high for those who most need it. Beyond high court fees, many individuals with criminal records often lack the resources to hire an attorney. This means that even a simplified petition process is often still too complex and costly to achieve the goal of greater equity for those held back by previous marijuana offenses on their records.

Applications-based systems have proven largely ineffective, affording relief to few who need it. Additionally, these systems unfairly place the onus of removing a cannabis offense, and all of the associated stigma, on the individual rather than on the government which created that stigma and the undue burden of a criminal record. Ensuring broad eligibility for automatic expungement of cannabis offenses is a critical first step to repairing the societal harms of prohibition.


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