Historically, arguments in favor of legalization have relied on two distinct paradigms: the libertarian, which argues that drug regulation is not within the bounds of legitimate government action, and the medical, which identifies the relative innocuousness of marijuana and its potential for medicinal use. During his campaign, new NJ Governor Phil Murphy articulated a third, vastly underutilized argument, which recognized the social justice ramifications of marijuana criminalization. By framing legalization as a social justice issue, Murphy called attention to the fact that low-level marijuana possession arrests and prosecutions disproportionality target black and Latino populations.
Despite equal usage across racial lines, a 2016 study by the Police Reform Organizing Project found that black and Latino defendants comprised 85% of those arrested for minor marijuana possession. Thus, the legalization of marijuana would be a step in the right direction for criminal justice reform and racial equality. However, despite this shift in rhetoric, there is little evidence to suggest that New Jersey, or any of the 22 states that have already decriminalized small amounts of marijuana, have taken the appropriate steps to rectify years of prohibition and fewer than half have considered legislation permitting record expungement or sentence commutation.
The importance of clearing criminal records in the wake of legalization cannot be understated. A 2004 study conducted by the Harvard sociologist Devah Pager found that men with criminal records were only half as likely to get a job offer.
It is fundamentally unjust that in some states, individuals can enjoy marijuana recreationally without being penalized while others struggle to find employment for engaging in the exact same activity. Of the 8 states that have instituted expungement related legislation following decriminalization, only Colorado, Vermont, Rhode Island, Oregon, and Missouri permit for the full expungement of marijuana related convictions that are no longer crimes in the state. Maryland, New Hampshire, and California all have waiting periods for expungement. In Maryland, this waiting period can be up to four years.
These lackluster numbers demonstrate that despite the nationwide push for marijuana legalization, there is a dearth of political will or interest in rectifying the most pernicious aspect of criminalization: the continued and unjust marginalization of those stuck with possession convictions on their record. Given that black and Latino communities are disproportionality targeted for possession convictions, the importance of expungement is heightened further.
In California — which legalized the sale and distribution of recreational marijuana this year — expungement has become more of a priority, making it unique among the states that have recently decriminalized marijuana and setting an example for other states considering the same. This is in part because of the sheer number of marijuana arrests in California, which in the past decade totaled 500,000. As a result, an emphasis has been placed on repairing the damages of marijuana prohibition by allowing for record expungement, according to Eunisses Hernandez, a policy coordinator at the Drug Policy Alliance. Such considerations should be the focal point of any discussion about marijuana legalization, and should be addressed simultaneously with decriminalization. If the limited history of criminal justice reform in this country has revealed anything, it is that the wellbeing of the convicted is infrequently a priority. This current wave of decriminalization provides a rare opportunity for redress.
While California’s 100,000 marijuana arrests in the last decade may seem like a lot, this number pales in comparison to arrests at the national level, which in 2016 alone were over 650,000. Of these arrests, 89% were for possession only. Currently, about 20,000 people are serving time in federal or state prison for marijuana charges. As more and more states consider legalization as a viable legislative option, these individuals cannot be forgotten. While celebrations are bound to ensue in any state where marijuana is legalized, the victory is incomplete until the real victims of prohibition are provided with legal rectification.
