Marijuana Decriminalization and Recent Expungement Laws Are Opening Doors for Ex-Offenders

By Michael Klazema on 9/15/2020

Recent legislative trends in the legalization and decriminalization of marijuana and the expungement of past criminal offenses are opening new doors for ex-criminal offenders. On a state and national level, these new laws could pave the way for a future in which certain offenses—particularly drug crimes related to the possession, distribution, or use of cannabis—are less of a barrier to employment and housing.

In Virginia, committees in the State Senate and House of Representatives recently voted to advance legislation that would expand expungement opportunities in the state. Currently, in Virginia, expungement primarily occurs in the case of criminal charges, which are wiped from a person’s record if they are acquitted of charges or the case against them is dismissed or dropped. The new legislation—Senate Bill 5043 and House Bill 5146—would create a variety of new policies for criminal justice reform.

The Senate bill would call for the expungement of multiple misdemeanor offenses—such as marijuana possession and underage alcohol possession—after five years. The legislation is intended, in part, to reflect the fact that marijuana possession is decriminalized in Virginia as of July 1, 2020. The House version of the bill also advocates for a system to automatically expunge certain crimes after eight years if the offender has no subsequent convictions.

In New Jersey, a similar law took effect in June and has already had a significant impact. The law is a piece of “clean slate” legislation, which allows someone who has a criminal record (but who has been conviction-free for at least ten years) to petition for expungement of all past criminal offenses. Not just anyone can qualify to have their records wiped clean: certain crimes, such as violent or sexual offenses, are not eligible for expungement.

According to New Jersey 101.5, the state saw an uptick in expungement applications after the law went into effect, even though courts were closed due to the COVID-19 pandemic. Some experts believe that the new accessibility of expungement in the state, combined with the spike of unemployment caused by COVID-19, is creating more interest among New Jersey residents in getting a “clean slate.”

There may be progress on expungement and criminal justice reform on the nationwide level thanks to a bill currently in the U.S. House of Representatives that would remove marijuana from the Controlled Substances Act. While marijuana has been decriminalized or legalized in many states, the drug is still nationally illegal. Representative Jerry Nadler, a Democrat from New York, introduced the legislation (the “Marijuana Opportunity Reinvestment and Expungement Act of 2019”), which would not only decriminalize marijuana federally but also create a process to allow for the expungement of federal cannabis offenses.

There would be other impacts, too: for instance, if the federal government were to decriminalize marijuana, then marijuana dispensaries and related businesses across the nation would be eligible for Small Business Administration (SBA) loans. Such funding services are currently denied to marijuana businesses.

To learn more about recent shifts in marijuana legislation, read our mid-year compliance report on the matter.

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