In recent years, the way we have thought about marijuana, its use and its legality, have changed. Medical marijuana is now legal in more than thirty states, and recreational marijuana is legal in ten. Even as advocates for legalization have celebrated this change, it has created a conundrum. Thousands of individuals remain in prison for marijuana-related crimes. While relatively few of those prisoners were incarcerated for possession, the situation creates concerns about fairness: why should the state impose a harsh penalty on an action that is not always considered a crime? This concern is especially acute in states that have legalized marijuana use across the board.
Several states that have legalized or decriminalized marijuana, including Maryland, Oregon, New Hampshire, and Massachusetts, have taken steps to help people clear their criminal records. However, the expungement procedure does not always go smoothly or provide the wide-ranging relief that it should. In some cases, jurisdictions have taken additional steps to reconcile criminal records with current law. When California legalized recreational marijuana, one provision of the law allowed those who had been convicted of marijuana-related crimes to petition the court to have their records expunged. But whether the option was not well-publicized or because many who would benefit from it were hesitant to approach the court, few people took advantage of the expungement option. In response, San Francisco’s district attorney decided to dismiss all misdemeanor marijuana convictions dating back over 40 years and announced plans to review marijuana-related felony convictions. In Colorado, which also permits the possession and recreational use of marijuana, the governor weighed the release of scores of prisoners convicted of nonviolent marijuana-related crimes. Similarly, the city of Seattle effectively erased marijuana-related misdemeanors from citizens’ records.
While it may be relatively easy for individual cities (and even some states) to create retroactive consistency in marijuana law, it is much harder to enforce such consistency on a national scale. For one thing, marijuana remains illegal in some states – and under federal law. These discrepancies raise the question about what counts as a crime and who should be punished for it.
Kathleen Davies is a Staff Writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.