Connecticut’s state legislature is once again debating the merits of decriminalizing the recreational use of marijuana.  Yet the most heated arguments are not about the wisdom of legalization.  Instead, they have focused largely on the commercialization of marijuana sales.  To what extent should the market be quickly opened to existing outlets for medical cannabis?  Or, in order for opportunities to be spread more fairly to communities of color, might licenses for sale be granted more widely?

Steven Wilf

In the meantime, thousands of citizens prosecuted for cannabis possession continue to experience the negative impact of their prior convictions.  It makes sense for the legislature to permit the expunging of their criminal records.

Attitudes toward cannabis use are changing.  Medical cannabis is widely available. Recreational marijuana is now legal in over a dozen states.  Along the Pacific Coast from Washington on the Canadian border to the very southern tip of California, cannabis use has been permitted for ordinary citizens.  Connecticut characteristically has been slow.  In 2011, a new law removed much of the sting of a marijuana conviction —making it resemble a driving infraction rather than a substantial crime.   Possession of one-half ounce or less results in a civil penalty of $150 to $500.

Connecticut’s erasure law allows an individual convicted of an offense later decriminalized to petition the court for expunging their record.  Although there remains a penalty for possession of small amounts of marijuana, the Connecticut Supreme Court deemed the 2011 statute as sufficient to be considered decriminalization. Yet why insist upon a cumbersome case-by-case requests to judges?  Hiring a lawyer to erase earlier marijuana convictions poses significant obstacles to the poor.  Filing a pleading for expungement unjustifiably contributes to existing economic and racial disparities.

There are many collateral consequences for criminal conviction.  Those found guilty of marijuana offenses face social stigma.  They might experience greater difficulty in finding employment, housing, or obtaining an occupational license.  If they are non-citizen residents, it might affect their immigration status.  The racial disparities in conviction rates are striking.  According to the American Civil Liberties Union, nearly four times as many African Americans are convicted of marijuana possession.  The War on Drugs has taken a significant toll.  Between 2001 and 2010 over eight million Americans were arrested for being found with cannabis.

Such statistics are staggering. It might be argued that we should simply wait until recreational marijuana is decriminalized before seeking expungement.  After all, decriminalization might again result in the opportunity to petition for erasure.  But the sheer number of individuals involved suggest that any delay in expungement will disadvantage those previously convicted and hinder their opportunity to contribute to society.  At a time when the pandemic makes participation in economic life more difficult, it seems unfair that there should be further hurdles for those who violated a law that we now consider unnecessary.

During the 2020 Connecticut legislative session two clean slate bills were proposed —and went nowhere.  New legislation should be submitted that provides for automatic expungement of criminal records for those convicted of possessing non-dealer quantities of marijuana.  Certain states such as Illinois have done so already.  California charged local prosecutors and the Department of Justice with erasing records.   Michigan provides for a simple application with the opportunity for prosecutors to object.  Other states, such as New York, introduced streamlined on-line procedures that can sidestep the need for costly attorney assistance and formal petitions to courts.

Connecticut could serve as a model for cannabis criminal record erasure by making it as straight-forward, inexpensive, and quick as possible.  Most importantly, the longer we wait the more individuals will be burdened by past mistakes.  Expungement should happen now.

Steven Wilf is a Professor at the University of Connecticut School of Law.

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