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Kennedy School Review

Topic / Fairness and Justice

The Case for Expungement of Cannabis Drug Charges Amid Its Widespread Legalization

Marijuana is both a widely used medicinal depressant and recreational drug in the twenty-first century. Older and younger people alike are drawn to the natural psychoactive drug, making it near-impossible to live in a major city without catching a whiff of its pungent, sulfurous perfume. However, with its spread into modern culture and widespread legalization comes the issue of expungement for those who were previously convicted for selling, possessing, or using marijuana.

The illegalization of marijuana and its effects took their first uptick in the mid-1960s and is traced back to the stances of the Nixon Administration, as well as, the Rockefeller Drug Laws. With over 40,000 people currently incarcerated for cannabis related offenses,1 and each state spending between $25-$120 million dollars in marijuana prohibition and enforcement expenditures,2 the illegalization of marijuana is becoming incredibly costly.3

On the other hand, the legalization and dispensation of cannabis is a multi-billion dollar industry with investors and celebrities including Jay-Z and Martha Stewart dipping their toes into this profitable market.4

In light of this, expungement for those imprisoned with felonies or misdemeanors on their record is a viable solution that can be implemented to fairly reintroduce past offenders to society, and, furthermore, mitigate the systemic consequences of marijuana sales and consumption within marginalized communities.5

History of the War

The War on Marijuana is being fought between two opposing forces: the Black and Brown communities, and the American justice system. According to the Marijuana Policy Project, African Americans are far more likely than their Caucasian counterparts to be arrested for cannabis, despite similar use rates across both races.6 This has been an ongoing conflict that has incarcerated an egregiously disproportionate amount of people and collapsed the stability of communities of color.

Aside from the obvious stigma surrounding drug sales and consumption in minority populations, another factor contributing to this drug war is the disparity in arrests in these areas, specifically for possession of small amounts of cannabis. With police more inclined to patrol underprivileged neighborhoods and minority communities, unequal enforcement ignores the universality of cannabis use, especially now as marijuana becomes legalized recreationally or medicinally in more and more states.

For decades, committing a drug-related offense could result in attaching a misdemeanor or felony to one’s record, and, in the case that the offender is not a legal citizen, detention and deportation to one’s country of origin.7 Furthermore, the offenses are a contributing factor to the stereotype of broken homes and torn families many associate with Black and Brown peoples. Expungement is a fair solution to this issue that vacates any marijuana-related offense, waives any fines related to their punishments, quashes any existing warrants, seals court files and law enforcement records, and restores the offender’s civil rights.8

Legal Decriminalization and Expungement Efforts

The proposition of the Cannabis Administration and Opportunity Act in the U.S. Senate was the first step toward marijuana-related drug reform and expungement. The Act, if passed, would remove cannabis from the federal list of controlled substances and call for the expungement of all federal non-violent cannabis convictions within one year of its enactment. The Act’s purpose is to decriminalize cannabis nationwide and “empower states to create their own cannabis laws.”9

The legalization of cannabis alone, though, does little to nothing to address the expungement of those who are still paying for crimes committed years ago. In order to promote equity, record erasure must be implemented for previously charged individuals so that they can reenter society and not contribute to the issues of unemployment, impoverishment, and stigma that follow many with tainted records.

The MORE (Marijuana Opportunity Reinvestment and Expungement) Act is one of the few successfully enacted cannabis legalization bills that was passed in the state of New York to remove marijuana from the Controlled Substance Act, reinvest in communities, and provide for the expungement of marijuana convictions.10

Some states have also used pardons to expunge past offenders. In 2018, Nevada Governor Steve Sisolak pardoned 15,000 people who had been previously convicted of offenses involving the possession of up to one ounce of cannabis. In 2019, Washington Governor Jay Inslee pardoned around 3,500 people with past criminal misdemeanor marijuana-related convictions, and Illinois Governor J.B. Pritzker issued 11,017 pardons to those with low-level marijuana convictions. In early 2022, Colorado legislators granted 1,300 pardons, and the mayor of Birmingham, Alabama, pardoned over 15,000 city residents.11 In late 2022, President Joe Biden discussed issuing an executive order that could pardon over 6,500 eligible American citizens and erase their federal convictions from their record.12

States have also adopted pre-plea diversion programs that can allow people who commit cannabis-related drug crimes in states where it is not legalized to participate in treatment programming without having to enter a guilty plea. Often, under-resourced people put on trial take the guilty plea, fearing worse consequences, especially if they are unable to find adequate legal representation.

The Counterargument

Many critics of expungement feel that the idea itself is just a way to reintroduce criminals to society without any rehabilitation or punishment and create an uptick in drug sales, which can trickle down to its consumption amongst those that are not fit to purchase such drugs. In turn, there are fears that expungement can result in the continued criminalization of black markets.

However, these concerns can be mitigated by a suite of policy developments, including decriminalizing drug possession and changing the punishment for cannabis in states that have not legalized it to mandatory drug treatment, rehabilitation, therapy, and community service. That way, policies that result in disproportionate arrest and imprisonment rates among people of color can be eliminated, providing a fair chance at a future to those who have been charged.

These policy developments, in tandem with the numerous social benefits—boosting the national economy by creating new tax revenue, reducing unemployment—further justify the necessity for expungement.13


The next wave of cannabis policy reforms needs to entail automatic record expungement to rebuild communities ravaged by the War on Marijuana.14 At the moment, about 85% of Americans support the legalization of medicinal marijuana use,15 and 59% of Americans support recreational use by adults.16 Furthermore, as public opinion and laws change in favor of recreational and medicinal cannabis use, decriminalization and expungement are the best solutions to adapt to these modern views. And while expungement does not make up for years of oppression and discrimination, it is a form of reparational justice that can give those who have been charged in the past a chance to re-enter society and have a fair shot at higher education, loans, housing, and employment.

Photo credit: Dad Grass via Unsplash

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