Giving Compass' Take:

• Alana E. Rosen argues that states that legalize marijuana should also include expungement statutes to help to reduce the harmful impacts of marijuana criminalization that fall disproportionately on marginalized communities. 

• How can funders work to drive equitable marijuana legalization efforts? 

• Learn how some communities are using legal marijuana to support those who were hit by the war on drugs


Imagine it is 2000 and a young college student named Adam is driving in a state where it is a crime to possess any usable amount of marijuana. The sun is beginning to set while Adam is driving home from a friend’s house. He purchased one ounce of marijuana to share with his mother, who suffers from chronic pain. His friend also gave him one small marijuana plant, so Adam can cultivate his own marijuana. Adam does not intend to distribute marijuana; rather the marijuana produced will be for household consumption. He puts both the bag of marijuana and the plant in his trunk. He is aware he is breaking the law by driving with an illegal substance, but he believes the benefits of marijuana outweigh the risk. He tries to drive home carefully.

When he fails to signal a lane change on a nearly deserted road, an on-duty police officer notices, and proceeds to pull him over. When the police officer approaches Adam’s window, the police officer thinks she smells a faint, sweet odor. From years on the police force, she is familiar with the smell of marijuana. The police officer knows she has probable cause to search the car from the scent of marijuana alone. The police officer asks Adam to step out of the car so she can conduct a search. After searching the car, the police officer finds nothing. She pops open the trunk and she discovers the bag of marijuana and the plant. She confiscates the marijuana, the plant, and begins to read Adam his Miranda rights.

Following his arrest, Adam is charged with and pleads guilty to a felony for possession, cultivation, and intent to distribute. The judge grants Adam felony probation where Adam is sentenced to drug treatment counseling, community service, and regular meetings with a probation officer. He must submit to random drug tests. He pays various court costs, probation fees, and fines. Because of his felony conviction, Adam loses his financial aid and cannot afford to attend the local university. He loses his right to vote, he cannot travel abroad, and he has trouble finding a job with a competitive salary. If Adam wants to try and clear his record, he has to wait several years before he is eligible, but he is unsure of when or even how to file a petition with the court. He feels hopeless, and he believes his chances for a successful life are over.

Fast forward to 2014 in this same state. Through a voter initiative, marijuana is now legal and there are dispensaries where adults over the age of twenty-one can purchase marijuana. Nick is driving down the same road Adam was pulled over on fourteen years ago. He has an ounce of marijuana that he purchased from a dispensary. Later in the day, his friend also gave him a small marijuana plant. He knows it is legal for his friend to give him the plant so long as no goods, services, or money were exchanged. Nick wants to learn how to cultivate marijuana plants so he can enter the legal marijuana industry. On his way home, he fails to come to a complete stop at a stop sign. An on-duty police officer notices this and sounds his siren to pull Nick over.

When the police officer approaches Nick’s window, she can smell the faint odor of marijuana. The police officer has a flashback to several years ago when she would have confiscated the marijuana and arrested the offender. She no longer arrests individuals unless there are signs that the driver is impaired. Meanwhile, Nick is prepared to explain himself to the officer if necessary, but the police officer tells him to be more careful and lets him go with a warning. Nevertheless, Nick is shaken up by the encounter, but drives home to put his goods away. He soon forgets about the traffic stop. He does not worry about losing the right to enter the legal marijuana industry, the right to vote, to own a gun, to travel abroad, or to receive financial aid, nor is he concerned about the financial costs of being arrested and charged with a felony. Nick benefits from the state’s new legalization law, while Adam continues to suffer the consequences of the now-repealed marijuana prohibition.

As more states continue to legalize, or even decriminalize, recreational marijuana, the divide will grow between individuals like Nick and Adam. Some individuals will benefit from the new marijuana laws. They can possess, use, cultivate, and even become entrepreneurs within the legal marijuana industry. Others will continue to suffer from the “collateral consequences” of the now repealed marijuana prohibitions. These individuals are denied access to employment opportunities, financial aid, public housing, the right to vote, to serve on a jury, to travel abroad, or to legally obtain a firearm.

This Article argues that any state that legalizes or decriminalizes recreational marijuana should automatically include a provision that expunges the record of individuals with previous marijuana-related offenses that are now considered legal under the new state laws. Erasing criminal records will allow individuals to shed the stigma of a “Scarlet-M,” start fresh, rebuild their lives, and contribute to society.