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As more states legalize marijuana, people with drug convictions want their records cleared

Michael has struggled with kidney disease since he was in his early 20s serving in the military. The high stress of the job ultimately put him in the hospital, and he was not able to return to the service due to his condition. The 37-year-old Virginia Beach resident, who requested his name be changed because of concerns about retaliation from future employers, said that a nurse mentioned during that hospital stay that marijuana could help alleviate many of his symptoms, like nausea and vomiting. But at the time, the substance was not legal in Virginia.

In order to pursue that treatment, Michael had a relative send him marijuana from a state where it was legal. But police tracked the package back to Michael, and he was arrested and charged with felony possession and intent to distribute in 2015. He was convicted and sentenced to three years of probation.

At the time, Michael was working in an administrative role for a federal government contractor, and having two felonies on his record prevented him from advancing in his job.

“Since that day, I wasn’t able to be promoted or even try to grow in the company or in the job field, because that would be cause for further background checks,” Michael said. After getting sick with the coronavirus last year, he developed further kidney complications and had to go on dialysis, as well as undergo a second kidney replacement. He left his government job for health reasons, and while marijuana will soon be legal to possess in Virginia, he still has a criminal record he worries will present roadblocks in his job search.

“I’m armed with the task of trying to figure out how to get a job with two felonies on my record,” he said. “If they won’t let me Door Dash or even drive Uber or Lyft, what makes you think I’m going to be able to get a government job?”

Sixteen states and the District of Columbia have legalized recreational marijuana over the last nine years, and industry advocates have applauded measures to de-stigmatize the substance and bring major revenue to state coffers.

But for people with lingering drug convictions like Michael, the news has raised more questions about what legalization means for their criminal records.

Currently in Virginia, “you have to go through all these hoops and loopholes to actually have an expungement,” Michael said. This may soon change. Like many other states that recently legalized marijuana, Virginia lawmakers included provisions in their legislation that over several years will allow for the automatic expungement of certain marijuana convictions, meaning people like Michael may one day see their records cleared without having to petition to do so.

Michael, of Virginia Beach, worries about returning to his contracting job with the federal government after being charged with two marijuana felonies. Photo courtesy of Cruel Consequences.

Such measures signal a broader effort by lawmakers to right the wrongs of the war on drugs, a decades-long campaign by federal and state governments to crack down on use of illegal drugs that also helped incarceration balloon in the U.S. States have begun to legalize substances like marijuana that have disproportionately imprisoned Black and brown Americans over the last 50 years, affecting their access to employment, education and housing. Racial justice advocates argue that state legislatures should not consider legalization bills unless they include proposals to help people easily expunge their records, as well as eliminate some of the barriers to entry Americans of color face when looking for work in the cannabis industry.

But just as states did not legalize recreational marijuana overnight, the lingering effects of the war on drugs are not likely to quickly disappear. Though Virginia Gov. Ralph Northam pushed to make cannabis legal in the state by the beginning of July, for example, many expungement provisions in the legalization and record-sealing laws are not set to take full effect until 2025 as state police and courts need time to update their computer systems and processes.

As a result, many Americans with marijuana charges on their records are currently living in a grey area, cautiously optimistic about the wave of legalization taking place but unclear what it means for their future.

“[Politicians] are making strides toward being really liberal and legalizing [weed], and that’s cool, but at the same time I served 10 years for this,” said Harry Kelso, another Virginia resident who served time in prison for possession and distribution. “So at some point, I feel like I deserve some reparations.”

How marijuana charges impede access to opportunities

Two people who spoke with the PBS NewsHour described how the criminalization of marijuana affected their access to stable housing and job opportunities over time, illustrating how the effects of drug charges can linger even after sentences are completed.

M. Green, 33, works as a fellow with Mass CultivatED, a program based in Boston that helps people with marijuana and other drug offenses find jobs in the industry. Like Michael, he asked to use only part of his name for fear of retaliation from future employers.

When Green was around 18, he and his grandmother were evicted from their Boston home after police conducted a search and found marijuana in his room. Although a court did not find sufficient evidence to convict him, he was left without a stable home. He then turned to selling drugs and said he felt like he had been “sucked back into the streets.”

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“My mom had an addiction, and that’s the same with a lot of my family members. Everyone is either using it or selling it. I kept on bumping into situations where I needed more money,” Green said, adding that he started selling because “it was around me so much.” Two years after he was caught with marijuana, Green was arrested and convicted of possession and distribution of cocaine, and sentenced to three years’ probation.

Even after he completed probation, the charges seriously impeded his access to employment.

“I’ve been turned down plenty of times for just having a felony,” Green said. He remembers having interviews with moving companies that would go well until they asked about doing a background check. “I’d say, ‘It’s a drug charge, it’s not like I got caught for stealing,’” Green recalled. But they would stop the interview process there, telling him they couldn’t let him into customers’ houses due to the charges.

“I can’t work for airlines. I couldn’t work for Lyft; they flagged my background,” said Katree Saunders, describing the hurdles she’s faced finding work since being convicted in 2011 on federal charges of possession and intent to distribute marijuana. Saunders was swept up in Operation Chronic Problem, a federal effort to crack down on Nevada marijuana dispensary operators before retail sale of weed was legalized in the state.“I try to work and then it’s like, ‘Oh, your background check comes back we can’t hire you because you have a distribution charge,’” she said.

Having a criminal record “obviously affects employment,” said Teri Ross, the executive director of Illinois Legal Aid Online (ILAO). “It affects your ability to find stable and safe housing, and it affects your ability to get access to education as well.”

Ross also oversees a program called New Leaf which, through ILAO, provides online resources to people seeking to get cannabis charges expunged from their records in Illinois, where recreational weed is now legal. While Ross thinks the benefits of expungement are clear, she said that isn’t always the case for her clients, especially if they’re not sure what’s on their record. “Often people have an idea of what they were charged with, but it may have changed if they plead. The rap sheets are full of jargon and abbreviations which make it really hard to make any sense out of it,” Ross said.

Additionally, she said that clients may have a number of different charges on their record, and not all of them may be eligible for expungement. “Many communities of color have been disproportionately targeted in the war on drugs over the decades,” Ross said. “And so few people from those communities, as a result, have a cannabis-only criminal record.” On top of this, expungement can be an expensive process, and fees may range from $150 to more than $500, as is the case in the state of Louisiana.

Pauline Quirion, director of the Criminal Offender Record Information (CORI) & Re-Entry Project at Greater Boston Legal Services and an adviser to Mass CultivatED program participants, said she thinks it’s a good sign when she works with clients seeking to seal or expunge their records because it means they’re focused on securing a career. She said that the adverse effects of a criminal record are evident from their experiences with the job search process.

“Some clients have applied for like 200 jobs and they’re rejected, but they keep applying,” she said. “So you have to have a lot of stamina to find employment.”

Saunders said she was “blindsided” to learn two years ago that she wasn’t able to renew her marijuana card to keep working in the industry in Nevada, despite the fact that she had previously worked for an edible company and recreational marijuana had been legal for two years. She said the situation left her “in limbo,” and made her think more deeply about how legislators should consider the people affected by the war on drugs as they’re voting to legalize marijuana.

“It needs to be written into the laws that people with past cannabis convictions should not be re-penalized when other people are making billions of dollars off of it,” said Saunders, who now volunteers with organizations such as the Last Prisoner Project, and is advocating for the federal government to legalize marijuana nationwide so that her charge may be cleared.

Today, Green has a job working as a patient advocate for a medical marijuana company in the Boston area, and he said his charges have all been dropped. While he’s an advocate for cannabis now, Green hasn’t forgotten the negative impact the war on drugs had on his life, starting with a marijuana charge.

“Cannabis has misplaced my whole family,” Green said. “White people are the first people to hop in this industry. Maybe they know about the plant specifically, but maybe they don’t know about the war behind it, the things people went through.”

He added that he wants to open a marijuana shop of his own in the future, and hopes that his past drug charges won’t impede his ability to get a cultivation license.

“If you have anything with cannabis on your record, you deserve this, as a reparation,” Green said. “It was illegal, but now it’s legal and a lot of money is being made.”

Wave of legalization accompanies renewed calls for racial justice

Even as states have grown increasingly lenient toward weed, Black people in the U.S. are still nearly four times as likely as white people to be arrested for marijuana, according to a 2020 ACLU analysis. And as more lawmakers consider legislation to legalize marijuana, the cases of people like Green and Saunders are on their mind.

A map showing state laws that specifically authorize expungement or sealing of marijuana convictions. Courtesy of Collateral Consequences Resource Center.

“We really felt like it was important to rectify the wrongs of criminalization and targeting in particular communities of color that had been disproportionately targeted for possession and criminalization,” said Andrea Romero, a New Mexico state representative whose district includes the city of Española, considered an epicenter of the drug wars. She co-sponsored an expungement bill to accompany New Mexico’s recent decision to legalize recreational marijuana, and as of June 29, arrests and convictions for a number of cannabis-related offenses will be automatically cleared from people’s records.

“For us, it was extremely important that we did right by our communities and took away that stigma … that folks who possessed or used the substance were somehow deviant or wrong and thrown into jail or prison,” Romero said.

David Schlussel, an expert on marijuana expungement with the Collateral Consequences Resource Center, said recent efforts to pass laws to expunge marijuana records in states such as Virginia, New Mexico, and Arizona signal a greater awareness of the harmful impact cannabis continues to have on communities targeted by the criminal justice system. He said that when states first began legalizing recreational marijuana 10 years ago, they rarely considered legislation that would help people clear their records. Campaign messaging to promote the new laws in states such as Colorado and Washington was usually driven by consumerism and tax benefits rather than racial justice. Schlussel said this began to change as lawmakers began to emphasize the necessity of racial justice in marijuana reform in their messages to voters, which in turn gave it more political capital.

More than 20 states have passed reforms related to marijuana expungement, Schlussel said, with outcomes ranging from automatic pardons for a broad range of offenses to the possibility of expungement for a narrower set of charges.

But once these laws are on the books, states could very well face challenges getting a variety of marijuana charges expunged, he added. While states like New Jersey, New York, and New Mexico recently passed bills to automatically expunge a wide range of marijuana offenses from people’s records, others have pursued approaches that are resource-intensive and still include a number of hurdles for people who want their offenses cleared.

In Arizona, where recreational marijuana recently became legal, expungement is possible but not automatic.

Julie Gunnigle, who ran unsuccessfully for Maricopa County attorney in the fall, said clearing Arizonans’ records is dependent on the support of county attorneys and the state’s attorney general, making it subject to the whims of politicians who may not necessarily be inclined to clear a broad swath of charges.

Although Gunnigle praised the “first-of-its-kind” expungement law that recently passed along with legalization, she added that “it is now going to be incumbent on leaders to find the folks who are eligible or those who are eligible to come forward and file these petitions if they want to get justice.”

Regardless of the steps that lie ahead for people with felony convictions in states where marijuana is now legal, Michael, of Virginia Beach, said he remains focused on how his life could change once charges are wiped from his record.

“I would immediately just get back to work and get back to doing what I love,” he said. “It would just be a weight lifted off my shoulders … I wouldn’t have to worry about the consequences of being tagged for the rest of my life.”

Editor’s note: This story has been updated to clarify Saunder’s employment situation.

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