Reversing the Devastating Impacts of Cannabis Criminalization

The criminalization of cannabis users over the last half-century has caused staggering damage and includes more than 20 million arrests in this country over the last 50 years. According to the American Civil Liberties Union, of the 8.2 million marijuana arrests between 2001 and 2010, 88% were for simple possession of marijuana. This has led to lifelong criminal records and, in many cases, ongoing imprisonment. 

It has also resulted in vast amounts of collateral damage including student loans denied, housing forfeited, jobs lost, voting rights revoked, and families broken up because of the barriers raised by criminal records. The cycles of poverty thus engendered can last for generations, and have disproportionately affected communities of color, who are disproportionate targets of overzealous (racist) police attention. Black and white folks use cannabis at approximately the same rates, yet Black people are arrested almost four times as often. 

An increasing popular awareness of these injustices, along with a growing sense that we’ve been sold a bill of lies about the harms of cannabis, is contributing to a sea change in public opinion in favor of cannabis legalization. Currently, 94% of Americans believe in the right to legally access medical cannabis. It is difficult to think of anything else that this many Americans agree on. Thanks to the concerted efforts of medical patients, dedicated activists, and sympathetic lawmakers, cannabis is currently legal for medical usage in 38 states and fully legal for adult usage in 23 states. No states are discussing “unlegalizing” cannabis.

With these shifts in public opinion, and with state-by-state advances in legality, one might be tempted to think that arrests for simple cannabis possession are a thing of the past. Unfortunately, that is not the case. 

In 2019, more than half a million Americans were arrested for cannabis-related charges, the vast majority of which (91.7%) were for simple possession.In 2020, as more states continued to legalize and as cannabis prosecution in many jurisdictions became a lower priority, the situation improved, but there were still 350,000 arrests, most serving no purpose whatsoever. There shouldn’t be any arrests for simple cannabis possession. It is only through full, federal legalization and the descheduling of cannabis from the Controlled Substances Act (CSA) that the arrests will finally stop. By ceasing to criminalize cannabis use, we can stem future drug-war-related damage to communities. 

Undoing the Damage From the War on Cannabis Users

In our eagerness to relegalize cannabis, we may be tempted to look only forward, but justice demands that we rectify the wrongs of the past that still destroy too many lives.

Even if at midnight tonight cannabis were magically legalized in all 50 states, as well as on the federal level, and removed from the CSA, there would remain millions of Americans, predominantly with dark skin, who are burdened by criminal records, fractured families, and lost opportunities. In order to reverse the worst of the damage from the war on drugs, it’s not enough simply to legalize cannabis everywhere. We need to undo the harms inflicted on people and on communities, especially communities of color, from past criminalization. What can we do to end the suffering of those who have wrongfully been caught up in the war on cannabis?

To start, we need to end the prison sentences of everyone with nonviolent cannabis charges—they never should have been incarcerated in the first place. President Joe Biden recently announced that all United States citizens with a criminal record for the “federal offense of possession of marijuana” would receive a presidential pardon. He encouraged states to follow suit and some, led by Democratic governors and legislators, did. Advocacy groups are also pushing for decarceration. For example, the Last Prisoner Project is a nonprofit dedicated to ensuring that no prisoners with cannabis convictions are left behind.

Next, everyone with a criminal record needs to be not only pardoned for their crime (a pardon is generally equivalent to the state forgiving your crime), but also to have their records expunged. The latter step seals the records and prevents any potential future consequences stemming from entanglement with the criminal justice system. In essence, expungement makes it as if the crime never happened. 

Expungements are most effective when they do not involve a great deal of hassle, expense, and bureaucracy on the part of the person trying to get their records expunged. Ideally, this is an automatic process. 

One organization that has pushed for these legal remedies for the last half-century is the National Organization for the Reform of Marijuana Laws (NORML). According to NORML’s 2022 report, Marijuana Pardons and Expungements: By the Numbers, “states that have automated the review and expungement process have seen a massive uptick in the processing of marijuana-related expungements.”

In 2020 Illinois announced that it had reviewed and expunged the records of nearly 500,000 people with low-level cannabis charges. These people can now pick up the pieces of their lives and move on, no longer saddled with a criminal record. More states need to follow Illinois’ lead not only in pardoning but also in automatically expunging records.

Charting a Just Path Forward By Sharing Profits

Finally, as we relegalize cannabis after several generations of prohibition, we need to preferentially funnel business opportunities and profits into exactly those communities that have been harmed most by the war on marijuana, particularly lower-income communities of color. This has been a challenge on a variety of levels, not the least of which is that, as cannabis becomes big business, those with power and privilege (i.e., wealthy, white) dominate the industry and are in no rush to redistribute opportunity. Greed trumps social justice. 

Fortunately, there are some great organizations working on this important issue. For example, the Parabola Center for Law and Policy, run by the brilliant and fearless attorney Shaleen Title, the former cannabis control commissioner in Massachusetts, is a policy-oriented think tank working to “devise a clear path for small businesses and historically disenfranchised groups to enter the market” and “help create policies that reflect the needs of the millions of people who continue to form the legal cannabis movement.” 

By ending cannabis arrests, pardoning past crimes, expunging records, and redistributing profits and business opportunities to the communities most harmed by the war on marijuana, we can begin to heal the massive harms incurred with prohibition and ensure a fairer future.