Pot Legalization Doesn't Always Mean Justice, Report Says

By Collin Krabbe | October 11, 2023, 3:20 PM EDT ·

A report from the Last Prisoner Project, a nonprofit advocating for criminal justice reform regarding cannabis, shows that equal justice doesn't always accompany the freedom to use the drug in states that have legalized it recreationally.

The report on Wednesday bestowed California and Minnesota the highest grades on their cannabis justice policies, also taking into account legalization and pardon policy in offering an overall score. Of note was that recreational legalization did not directly correlate with criminal justice reform, with some states ranking much higher than others despite allowing the use of cannabis.

Maine is still particularly harsh in terms of pardon, resentencing and record policies despite voters approving legalization in 2016. Maine falls far behind in offering "retroactive relief," according to the report, with no record clearance process for cannabis convictions.

That said, the nonprofit said it applauds the state for having broad eligibility for pursuing resentencing, but cannabis offenses are not expedited.

"The disparity between the growing passage of these policies and the stagnant efficacy of these policies proves an important takeaway: that statutory language is only a start to effective change, and there is still much to be done," the Last Prisoner Project said in a statement to Law360. As of 2023, 24 states have enacted cannabis-specific record clearance laws, and 10 states have enacted cannabis-specific resentencing laws, according to the group.

Alaska was knocked by the nonprofit for being one of only two legalized states without record clearance or presentencing, but was credited for working to shield certain cannabis records from the public eye. Alaska also has no cannabis-specific pardon program as well as no expungement process for cannabis offenses, according to the report.

"The state is in a difficult position as Alaska law has no expungement provision for valid convictions and the court established 'a clear preference for public records to remain accessible,' meaning the state cannot enforce a categorical expungement policy," the report said.

That said, the nonprofit also noted a Supreme Court ruling — unspecified in the report — that ordered certain cannabis charges be removed from a public index online, hiding nearly 800 records. 

Both Alaska and Maine are in the unique position of being among the first states to strike penalties of cannabis prohibition but also the last states to redress the harms of prohibition, lacking cannabis-specific avenues for record clearance or resentencing, the Last Prisoner Project told Law360. 

But even the states that have more laws surrounding cannabis have ground to make up, the report says. According to the Last Prisoner Project, several counties in California missed the July deadline for implementation of record clearance and resentencing processes, leaving thousands of individuals in the wind.

Meanwhile, Colorado doesn't have a cannabis resentencing process, but it does have a pardon process that works in a similar way, according to the report. In particular, an executive order signed in 2021 gives full and unconditional pardons for having 2 ounces of cannabis or less, and the Colorado Bureau of Investigation is responsible for pardoning eligible convictions.

A total of 23 states have enacted adult-use cannabis legalization, according to the Last Prisoner Project. 

When asked for comment on the goal of the report and why it was issued, the organization said that "although relief for cannabis-specific record clearance and resentencing has become increasingly commonplace as states continue to legalize, it is clear that not all policies are created equally. We wanted to draw attention to this wide-spread variation and inadequacy in state policies."

--Editing by John C. Davenport.

Update: this article has been edited to add comment from the Last Prisoner Project.

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