Legalization Is Not Enough

By: Travis Henderson

Legalization is not enough.

This blog post will argue for the complete, automatic, and retroactive legalization of marijuana in place of expungement processes.

 The narrative around marijuana is changing, reflected in an ever-growing number of states turning to legalization. The supporters of legalization come from all sides; some point to the potential economic benefits, while others point to racial disparities in the enforcement of drug crimes and the negative impacts of ensuing drug convictions.[1] These negative impacts include direct criminal consequences, such as fines, incarceration, and supervision, and civil consequences, such as loss of rights and public benefits.[2] Drug convictions can also indirectly impact an individual, such as impacting an individual’s ability to find employment, housing, or social acceptance.[3] Finally, when drug enforcement creates racial and class disparities, legalization offers little redress, nor does it address active incarceration or community supervision.[4]

Many states offer expungement processes to redress prior marijuana convictions and their negative impacts.[5] For example, Arizona Proposition 207 allows individuals to petition to have their marijuana conviction expunged.[6] Unfortunately, this process is not automatic, is limited in scope, and is subject to the court’s discretion and the prosecution’s objections.[7]

As the process stands, the expungement process has several drawbacks. First, the process relies on the individual to initiate it, and data shows that many people do not.[8] For example, in Arizona, the State suspects that about one-quarter to one-half a million people could qualify for expungement.[9] Nevertheless, in Pima County, the second largest county in Arizona, fewer than 100 expungement petitions had been filed by the end of 2021.[10] Some suggested explanations are individuals not trusting the expungement process, not understanding it, or simply becoming accustomed to life with their convictions.[11] Second, by putting the burden on the individual, the State asks them to navigate the legal system, which is overbearing and confusing. These burdens might include filing motions, paying court fees, or appearing in court.[12] Even in states like Arizona, where the State does not charge a filing fee, the process is not without cost.[13] In order to file an expungement petition, people must leave work or school and take time away to facilitate this process which disproportionately burdens those with fewer resources.[14] Third, the expungement process often applies in limited circumstances. Society is rapidly embracing the marijuana industry, yet expungements often only apply to misdemeanors or under specific circumstances.[15] Additionally, there is often inconsistency in how expungements are applied; the process is often at the discretion of a court, prosecutor, or pardon authority.[16] For example, a court may expunge a possession charge but deny the corresponding paraphernalia charge.[17]

For these reasons, the State should provide complete, automatic, and retroactive legalization instead of expungement or similar process. A goal of legalization should be to fully restore individuals convicted in the past for something presently legal. This burden should not rest on the people who have already suffered; instead, this burden should be on the State. First, the government has the resources to track all its convictions and the specifics of each case. Second, by placing the burden on the State, it relieves people with fewer resources from being overburdened by the expungement process. Third, legalization is, in part, a recognition that this is something that society wishes to punish no longer. In this regard, legalization does not coincide with punishment, regardless of the nature of the offense. For example, in Arizona, under Proposition 207, an individual with “two and one-half ounces or less of marijuana” could get it expunged; yet, an individual with 3 ounces has no recourse.[18] This type of line drawing seems arbitrary and unnecessary. If a state views marijuana as safe enough to legalize, it should do so completely, automatically, and retroactively.

Simply put, legalization is not enough. Legalization does little to address the negative impacts of prior drug convictions. The meager utilization of the expungement process is not enough to call it a success. Therefore, we must push forward and demand that the States apply legalization completely, automatically, and retroactively.

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[1] CRIMINAL LAW: RETROACTIVE LEGALITY: MARIJUANA CONVICTIONS AND RESTORATIVE JUSTICE IN AN ERA OF CRIMINAL JUSTICE REFORM, 110 J. Crim. L. & Criminology 379.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Ariz. Rev. Stat. § 36-2862.

[7] Id.

[8] https://news.azpm.org/p/newsfeature/2021/9/17/200598-how-is-proposition-207-impacting-arizona/.

[9] Id.

[10] Id.

[11] Id.

[12] CRIMINAL LAW: RETROACTIVE LEGALITY: MARIJUANA CONVICTIONS AND RESTORATIVE JUSTICE IN AN ERA OF CRIMINAL JUSTICE REFORM, 110 J. Crim. L. & Criminology 379.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] https://news.azpm.org/p/newsfeature/2021/9/17/200598-how-is-proposition-207-impacting-arizona/.

[18] Ariz. Rev. Stat. § 36-2862.

Travis (he/him) is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. He attended Utah Valley University for his undergrad. His legal interest is primarily in indigent criminal defense and criminal justice reformation. Outside of law school he enjoys hanging out with his wife and two dogs Tonka (Great Pyrenees) and Tony (Pitbull), and riding his motorcycle around the valley.