Twenty-four states and D.C. have legalized recreational adult use of marijuana, with more than half of Americans now living in a jurisdiction where they can legally buy the drug. Advocates and public officials have increasingly pushed to put an end to the lingering consequences for people convicted of marijuana-related activities that are no longer against the law, especially in Black and Brown communities that have been disproportionately targeted by the war on drugs.
But the patchwork of remedies has been complicated by state laws, politics and bureaucracy. Most Republican-led states still ban recreational and, in some cases, medical use of cannabis. Even the most aggressive measures to automatically clear criminal records do not ensure that people once charged with marijuana possession won’t have that record used against them when seeking jobs or housing.
The Biden administration began a major push to forgive individuals with minor marijuana convictions in 2022, when the president pardoned about 6,500 people convicted of federal possession charges. In December, he expanded those pardons to thousands more and called on governors to follow suit, stirring hope among advocates that has grown even stronger with Maryland’s pardon announcement this week.
“I’m optimistic those dominoes are falling,” said Sarah Gersten, executive director and general counsel for the Last Prisoner Project, a nonprofit that advocates for ending incarceration for marijuana-related crimes. “Hopefully, this is just the first step in a much larger moment for cannabis justice.”
Cynthia W. Roseberry, director of policy and government affairs focused on justice issues for the American Civil Liberties Union, said the pardons for low-level marijuana offenses in Maryland and some other states represent a “good first step, but it is a small step” to address what she described as systemic, racial inequities in the criminal justice system.
“This really is a signal that elected officials are beginning to listen to the people,” Roseberry said. “The people want folks to do more, and I think elected officials have to be bold enough to follow the people in that way.”
More than 2 million Americans have had their cases expunged or pardoned in recent years, said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, known as NORML, which closely tracks such efforts across the country.
The action by Moore (D) in Maryland will impact about 100,000 individuals. But while mass pardons from him, Biden and Massachusetts Gov. Maura Healey (D) have drawn the biggest headlines, legislative and voter-approved measures to expunge such cases are having a wider impact, Armentano said.
That’s because while pardons amount to forgiveness for a crime, only expungements erase the records of convictions, which can still pose a barrier for people seeking employment, housing or social services.
States that used to rank high in marijuana arrests but have legalized the drug, such as New Jersey, New York and California, have expunged hundreds of thousands of low-level cases in recent years, Armentano said. But in states such as Florida and Texas, where marijuana remains illegal for recreational use, law-enforcement officers continue to arrest people for low-level marijuana offenses. There were nearly 209,000 arrests nationwide for marijuana possession in 2022, according to FBI statistics.
Legal experts caution that state-level expungements are not always automatic — and note that people often don’t have the time or means to petition a court to have their cases stricken.
Maryland will automatically expunge records for people whose only charge was misdemeanor marijuana possession, accounting for about 40,000 of the 175,000 charges Moore pardoned this week, according to the governor’s office.
The pardons comes as the Justice Department has acted to move marijuana to a less restrictive category of controlled substances, a historic policy shift that does not completely legalize the drug at the federal level but may broaden access to medical cannabis and spark scientific research into its health benefits and risks.
Public opinion on marijuana has also shifted substantially, with a 2023 Gallup poll showing 70 percent of Americans — and more than half of Republicans and conservatives — now back legalization.
Although cannabis policy is not a top issue for most voters, some Democratic strategists have said the issue could boost their candidates in November. Donald Trump, the presumptive Republican presidential nominee, has expressed inconsistent views on marijuana policy in the past, and his campaign has remained quiet on the issue in recent months. During his 2016 presidential campaign, Trump said he supports states making their own decisions about whether cannabis should be legal.
A few Republican-led states, including Ohio, Montana and Missouri, have decriminalized the drug.
Under Missouri’s 2022 constitutional amendment legalizing marijuana, expungements for marijuana-related crimes were supposed to be automatic and completed on a tight deadline. More than 123,000 cases have been expunged. But not all have actually disappeared. Court clerks were overwhelmed by the number of prosecutions, old records were hard to find and some cases were labeled as possession of a controlled substance, not marijuana, said Sydney Ragsdale, an attorney with the University of Missouri at Kansas City School of Law Expungement Clinic.
Many cases still appear on certain background checks that involve government jobs because the records aren’t being completely destroyed, Ragsdale said. Courts have also refused to expunge local ordinance violations involving marijuana, even though they are punishable by jail time.
“In Missouri, municipal offenses aren’t technically a crime. But at the same time, they are considered crimes for the FBI purposes. And so they come up on criminal background checks,” Ragsdale said.
Kamisha Webb, 46, was charged with a marijuana possession ordinance violation in 2004 in Lee’s Summit, Mo., an accusation she still disputes. She pleaded guilty only to a traffic violation. Webb, a civilian investigator from Kansas City, Mo., said she earlier lost out on two federal government jobs because of the arrest, which remains visible on some background searches even though it was technically expunged in recent months.
“It’s been very humiliating and very crippling to see those job opportunities disappear,” said Webb, who is asking an appeals court to completely purge the record.
Other states have also confronted the gulf between their policy aims and the reality of this country’s complex justice system.
When New Mexico legalized marijuana in 2021, the law provided for automatic expungement of some low-level cannabis-related crimes. But officials found that many expungements were not so clear-cut, said Serge Martinez, a professor of law at the University of New Mexico School of Law.
Some cases involved convictions for other crimes. Some were recorded in the offices of rural sheriffs. For more complex cases, the state now asks people to petition for an expungement, instead of expecting it to happen automatically, Martinez said.
“It’s a reflection that these policies are sound and great until the rubber hits the road, and we have to deal with nuts and bolts.”
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