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As 19 states across the country have legalized recreational marijuana in the past decade, many activists also called on lawmakers to expunge or seal convictions for marijuana possession, with the premise that it made little sense to penalize people for participating in a practice that is now legal.
But few states have made the process automatic, relying on time-consuming or confusing petition-based systems to have records expunged or sealed. In two states — Maine and Arizona — recreational marijuana has been fully legalized but no process exists to either expunge or seal any kind of underlying convictions.
Recreational, or “adult-use” marijuana has been legal in Maine since 2016 following a ballot referendum. Adult-use sales began in October 2020 after haggling between the legislature and former governor Paul Le Page, who favored more restrictions on the sale of the plant. Le Page was replaced with current Governor Janet Mills, who supports legalization, ushering in a set of less restrictive guidelines that nevertheless excluded people with drug convictions from selling legally.
Officials have argued that expungement and sealing marijuana records would be too complicated, due to difficulty accessing records and legal conflicts, but advocates agree that the overriding issue is that the political will to conceal or remove these convictions does not exist in the state.
Automatic expungement of marijuana convictions, in which underlying convictions are removed from the record, even to judges and prosecutors, has been indefinitely sidelined in Maine. A bill introduced in 2019 to expunge records and another bill to seal records both died in the legislature. Maine’s Democratic attorney general, Aaron Frey, has interpreted the state’s constitution as giving power of expungement only to the Governor, and so the state’s official stance is that any expungement law would be found unconstitutional by courts.
But not everyone agrees with this legal analysis. “I’ve been advising legislators that they should be calling the attorney general’s bluff,” says Michael Kebede, an ACLU representative for Maine. He says that even if an expungement law were found unconstitutional, the state’s constitution can be revisited.
“We can amend the constitution to allow for expungement,” he says.
Because the Governor and attorney general have foreclosed the possibility of signing an expungement bill, the energy of advocates has been centered around getting criminal records sealed, but this is a less than satisfactory solution for a few reasons.
“We would rather see expungement. That’s a more effective way of removing a conviction,” says Matt Morgan, a member of the Maine Association of Criminal Defense Lawyers, which supports expungement of marijuana convictions and other non-violent convictions. Expunging a record means to completely remove it; sealing a record hides it from public view, but it can still be accessed. Applicants for housing, for instance, could be forced to lie rather than say they have sealed conviction and risk losing housing. Repercussions from marijuana convictions can impact a person’s housing or employment. Even though Maine passed “Ban the Box” legislation, which forbids employers from asking about convictions on employment applications, they are still permitted to ask their employees once they’ve hired them, which can hinder them professionally or lead to them being terminated. Convictions can also exclude people from the legal marijuana industry, creating disparities between white growers and Black and Latino growers, who suffer the brunt of marijuana arrests in Maine. According to the state’s guidelines, people applying for permits to grow marijuana cannot have a drug conviction on their record, unless 10 years have passed since they completed their sentence.
“We’re finding marijuana is now a business boom, people who have convictions are not able to partake in that boom because they were incarcerated,” says Bruce King, a formerly incarcerated man who is a member of Maine Prisoner Advocacy Coalition. King, who has been out of prison for more than 12 years, says he’s faced other barriers from his own conviction (which was not for marijuana), including difficulty finding a job and housing in the years after his release.
“It’s pretty insane that we have something that is proven to be incredibly benign in comparison to alcohol or something of that nature and people’s lives are ruined,” he says.
Expungement in the state has also been criticized by the Maine Press Association, which says that the public has a right to know about the convictions, despite the fact that marijuana is now legal in the state, and by state officials who say the process is too technically complicated.Officials with the State Bureau of Investigation(SBI) have pointed to the logistical difficulty of matching physical felony records up in their database, which has never been digitized. An inquiry to the state’s bureau of information inquiring about the practice was not answered by presstime.
In a 2019 hearing on the record-sealing bill, John Pelletier of the state’s Criminal Law Advisory Commission testified that “any process for sealing these records is complicated, likely beyond the capability of SBI, and requires further study.” The commission said that because SBI’s records on marijuana convictions are not parsed out from convictions for possessing other similarly categorized drugs, they would have to be separated manually. The commission recommended further study on the legislation.
In the same hearing, SBI Director Matthew Ruel cautioned that such bills would prevent employers in nursing or childcare from viewing criminal records, and asked the bills to be delayed into the following session.
But to advocates, these explanations are unsatisfying, given the impact of the convictions on people’s daily lives. “These are people’s lives and it impacts so many different facets of their lives. The idea that you don’t want to put in the time and effort to correct something that’s wrong to begin with, that’s the worst excuse ever,” says King.
Alia Toran-Burrell, Associate Program Director with Code For America, who works on the organization’s “Clear My Record” project, says that running into physical records is inevitable when thinking through expungement, because not all records have been digitized. Clear My Record has worked with state governments and communities since 2018 to help automate expungements, most notably in San Francisco and four other district attorney offices in California. The project had cleared more than 140,000 convictions in California by March of this year alone.
“Paper records are bound to come up,” Toran-Burrell says. “When we’re thinking of record clearance, it’s not an impossible thing to overcome.” The organization is still thinking through the problem of physical records, she says, but some solutions include finding digital footprints of analog records that have been recorded for other purposes, like searches.
Since the issue of clearing convictions often comes down to preventing courts or background check companies searching for those records, it follows that some kind of digital index likely exists that allows these searches to happen. Clearing these digital notations would be far less time-consuming and costly than focusing on the original physical record. The issue has come up with a number of states, she says, and the organization encourages policy-makers not to focus on amending physical records when drafting expungement legislation.
Kebede, with the ACLU, is sympathetic to SBI’s resources and staffing issues, but believes the state should work to resolve it. “They need organizational wherewithal to clear criminal records and they don’t have a very easy system,” he says. The state’s willingness to resolve the problem is limited, he says.“There’s no will so there’s no way,” he says.
Morgan, with the state defense lawyer association, also said the state could reallocate resources if needed. “I would say that if the state is able to come up with the resources needed to prosecute for crimes, I think that it is reasonable to assume that if they really wanted to see sealing happen that they could pay for it,” he says.
King believes that Maine governor Janet Mills doesn’t want to take any power away from law enforcement, which also is a challenge. But he also views the governor as pragmatic and open to changing her mind if enough will is there. “If there’s strong enough public outcry and support, that’s when you tend to get her changing positions,” he says.
He says some who he believes have a moral responsibility to be vocal — the new crop of legal marijuana growers and sellers in Maine, many of whom are white, have not been strong enough in their support. The industry raked in over $10 million in August alone, including $1 million in sales taxes that went to the state.
Maine Craft Cannabis Association did submit testimony supporting bills for expungement and sealing. Business owner Mark Barnett said that the state’s vote to legalize the plant was, among other things, about “racial justice,” and necessitated redress for past historical wrongs in the drug war.
“Failing to honor that intent… would be a discredit to this state and an insult to the many voters who have time and time again when given the opportunity voted to make marijuana legal for adults,” Barnett testified.
But King says many other cannabis business owners have been absent from lobbying for record sealing or expungement. “I don’t think they have been vocal. they were very vocal about the legalization..it was a big battle,” he says. “People are like, ‘okay now that we’re clear we’re not going to put a lot of time and effort into that.’”
This article is part of The Clean Slate, a series about how cities can use technology and policy to eliminate unjust fines, fees, and other barriers to economic mobility. The Clean Slate is generously supported by the Solutions Journalism Network.