It’s been a federal crime to possess, cultivate, or distribute the cannabis plant or any products derived from it since the 1930s. The law enforcement policy built around the criminalization of cannabis has become a behemoth, arresting between half a million and 750,000 people per year for possession alone.
For many, a possession arrest isn’t as simple as paying a fine and moving on with life. The consequences for such a small action can haunt someone for years and decades, preventing them from advancing their careers, finding housing, and contributing to their communities. Now that 30 states have legalized medical marijuana, and nine have legalized social use for adults, more are realizing – and advocating for – records expungement for those convicted of cannabis possession, a group that totaled 8.2 million through the first decade of the 21st century alone.
Who gets arrested?
Cannabis possession arrests in the U.S. are not evenly distributed; some states arrest far more people than others, while others hardly arrest anyone (thanks to legalization). In 2016, Wyoming was the state with the highest arrest rate, at 415.2 arrests per 100,000 people. That figure includes a total of 2,248 possession arrests. New Jersey was home to the second highest arrest rate at 400.4 arrests per 100,000 citizens, and third for total possession arrests at 32,263. South Dakota, New Hampshire, and Missouri rounded out the top five states where you’re most likely to get arrested for cannabis. New York had the second-highest number of total possession arrests at 36,977, while Texas was far and away the leader in total possession arrests at 63,599.
Justice is not colorblind when it comes to cannabis possession, either. People of all racial and socioeconomic backgrounds tend to use cannabis at the same rates. However, arrest rates are far higher for people of color than for white people. Black people are about three times more likely than whites to be arrested for cannabis possession, depending on the region. In New York City, black and Latino men comprised 86 percent of cannabis possession arrests between 2014 and 2016.
The steep consequences of cannabis possession arrests
Most cannabis-related arrests are for the possession of a small quantity of flower. In fact, cannabis possession busts were estimated to account for five percent of all arrests in the U.S. in 2016 – that’s more than murder, rape, assault, and robbery arrests combined.
Having a record associated with a non-violent cannabis arrest exacts a significant penalty. Mandatory minimum sentences and a three-strike policy have contributed to harsh punishments for merely possessing a small amount of cannabis for personal use. Here’s a look at consequences for violating federal cannabis possession laws:
- First offense: This is a misdemeanor punishable by up to one year in prison and up to $1,000 in fines.
- Second offense: The federal penalties for a second offense increase to a 15-day mandatory minimum sentence and up to two-year prison terms, as well as a $2,500 fine.
- Third offense: For a third arrest, possession could be considered a felony. It carries a 90-day mandatory minimum incarceration sentence, up to three years in prison, and a $5,000 fine.
It doesn’t just stop at fines and imprisonment, however. The punitive system for non-violent drug offenses can follow someone for years, or even decades:
- Possession charges could result in a person losing his or her academic scholarships, barring otherwise motivated and intelligent people, particularly people from disadvantaged and poor communities, from attaining educational opportunities needed to advance their lives and their communities.
- Past convictions could result in the denial of mortgages or business loans, preventing people who’ve answered for their non-violent crime from owning a home or business.
- A criminal background check conducted by an employer could preclude a previously convicted person from attaining employment, regardless of their qualifications for the job.
- Previous possession charges could result in the loss of public benefits, compounding poverty in communities most harmed by the War on Drugs.
Legalization and automatic expungement
Legalization could ameliorate some of the most severe consequences of cannabis arrests. For starters, fewer people are being arrested, preventing new people from facing the challenges that others before them have faced and reducing the taxpayer expense on enforcement.
In Colorado, arrests fell by more than 80 percent from 2010 to 2014, when the first retail dispensaries for legal cannabis opened. In Washington state, arrests fell by 98 percent between 2012 and 2013 following legalization, resulting in a savings of over $200 million in taxpayer funds spent on enforcement. The same trend was observed in Alaska, Oregon, and Washington, D.C.
While legalization has improved conditions considerably in many states, it has not necessarily undone the injustices of the past. Those convicted of possession charges still contend with the difficulties of finding a job, obtaining a loan, or obtaining public benefits. As legalization is normalized, however, states are grappling with how to best deal with those with prior convictions.
In California, for example, adult felony convictions related to cannabis were reclassified as misdemeanors following the passage of Proposition 64 in 2016. However, those charges still carry the potential for up to six months in jail, and convicts must first petition the courts to have their sentences revised accordingly. The state legislature is working to improve conditions through consideration of a bill that would include automatic expungement for a prior conviction for an act not considered a crime as of January 1, 2017.
In New Jersey, where an active effort to legalize adult-use cannabis is underway, advocates have been pushing hard for lawmakers to include automatic expungement in the legalization bill. Advocacy organizations like New Jersey United for Marijuana Reform, the Drug Policy Alliance, and the Coalition for Medical Marijuana-New Jersey have all called on Garden State lawmakers to include automatic expungement in any final legalization bill. New Jersey State Assemblyman Jamel C. Holley (D-Union) has been a vocal supporter of automatic expungement legislation as well.
Healing wounds caused by criminalized cannabis possession
For states to truly correct the sins of the past, it is essential for any cannabis policy reform to include automatic expungement for people arrested or incarcerated for cannabis related crimes. That ensures those who were prosecuted by the state will be retroactively forgiven and, ideally, allowed to enter the newly legal market as an entrepreneur or employee without a criminal record.
While many states are responding to the popular support for legalization, the federal government has neither changed the classification of cannabis nor the penalties associated with cannabis arrests. Today, cannabis remains a schedule I drug under the Drug Enforcement Agency’s classification, which means it is considered a drug with “high potential for abuse” and “no accepted medical use.” That means federal authorities could arrest someone for possession and the strict consequences would still apply, regardless of state law, no matter how noble or liberal the state law may be.
The cost of criminalizing cannabis is immense, both financially and socially. So long as federal prohibition remains in place, people will be fined and incarcerated for non-violent crimes at a rate that exceeds violent crime nationwide. States can and should work toward legalization and automatic expungement, but a comprehensive policy that legalizes, regulates, and taxes cannabis, as well as expunges the records of those convicted of non-violent offenses, is a social, economic, and moral imperative.