The Lingering Stench of Marijuana Prohibition
People with pot records continue to suffer, even in places where their crimes are no longer crimes.
Franklin Roosevelt, who took office in the final year of Prohibition, issued some 1,300 pardons for alcohol-related offenses during his first three terms. As a 1939 report from the Justice Department explained, "pardon may be proper" in light of "changed public opinion after a period of severe penalties against certain conduct which is later looked upon as much less criminal, or as no crime at all." The report cited Prohibition as "a recent example."
That logic made sense to governors as well. When Indiana repealed its alcohol prohibition law in 1933, Gov. Paul McNutt (D) issued pardons or commutations to about 400 people who had been convicted of violating it. "If these men were kept in prison after the liquor law is repealed," he said, "they would be political prisoners."
Alcohol prohibition lasted 14 years. Marijuana prohibition has been with us almost six times as long. Police have arrested people for violating it about 20 million times in the last three decades alone. Many of those people were ultimately convicted of felonies that sent them to prison, although the vast majority were charged with simple possession and spent little or no time behind bars. Either way, marijuana offenders have had to contend with the lingering effects of a criminal record, which can shape people's lives long after they complete their sentences.
Depending on the jurisdiction and the classification of the offense, people who were caught violating marijuana laws may lose the right to vote, the right to own a gun, the right to drive a car (for up to a year), the right to live in the United States (for noncitizens), and the right to participate in a wide variety of professions that require state licenses. They may find it difficult to get a job, rent an apartment, obtain student loans, or travel to other countries. They may even be barred from coaching kids' sports teams or volunteering in public schools.
The employment consequences can be explicit, as with state laws that exclude people convicted of felonies from certain lines of work, or subtle, as with private businesses that avoid hiring people who have criminal records, possibly including arrests as well as convictions, because of liability concerns. "There is no limit to how much you can discriminate against a person with a criminal record," observes Douglas Berman, a sentencing expert at The Ohio State University's Moritz College of Law.
Such ancillary penalties seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use. In those places (which so far include 10 states, the District of Columbia, and the Northern Mariana Islands), people convicted under the old regime continue to suffer for actions that are no longer crimes.
California has gone furthest to address that problem. The state's 2016 legalization initiative authorized expungement of marijuana records, and a 2018 law will make that process easier. Demanding expungement as a remedy for injustice, activists in California emphasized the racially disproportionate impact of the war on weed: Black people are much more likely to have pot records than white people, even though they are only slightly more likely to be cannabis consumers.
Other states offer various forms of relief, ranging from generous to nearly nonexistent. All of them put the onus on prohibition's victims to seek the sealing or expungement of their criminal records, a process that can be complicated, expensive, and time-consuming.
"Very few people have actually taken advantage of that," notes Margaret Love, a former U.S. pardon attorney who is the executive director of the Collateral Consequences Resource Center. "As long as people have to actually go into court, they're probably not going to do it."
Berman argues that expungement of criminal records related to conduct that's no longer illegal should be automatic. "If our moral view of the behavior has changed," he says, "the default ought to be that we undo any past criminal consequences."
Love notes that the relief available to people with criminal records varies widely from state to state, even when it goes by the same name (e.g., sealing or expungement). Generally speaking, "expunged" records are not actually erased, and "sealed" records are still visible to certain agencies or for certain purposes. Arrests and convictions may linger in private databases used by employers and landlords even if the general public cannot see the official records. Depending on the state, a pardon from the governor may or may not result in expungement.
At the federal level, there is no expungement process. A pardon from the president restores certain rights, such as the right to own a gun, but does not eliminate the offender's record.
"It's really, really hard to make something disappear," Love says. "People don't see collateral consequences as part of the sentence, but they certainly are part of the punishment. How can you serve your sentence? How can you pay your debt to society? It borders on immoral to have a system of punishment that offers no way out, that never ends."
People with marijuana records are looking for a way out in every state that has legalized recreational use, as the stories below show.
Legalization approved: 2014
Who approved it: voters (Ballot Measure 2)
What's legal: public possession of up to an ounce, commercial production and distribution, home cultivation of up to six plants (no more than three of them mature)
'Treated Like Criminals'
Charlo Greene, an Anchorage TV reporter who famously quit on the air in 2014 after revealing that she was the founder of the medical marijuana club she had just described to viewers, may have invited more attention than she ultimately wanted. In March 2015, four months after Alaskans voted to legalize marijuana but a year and a half before the first state-licensed pot shop opened, police raided her Alaska Cannabis Club.
Greene, whose legal name is Charlene Egbe, had been operating the club in a legal gray area created by the medical marijuana initiative that Alaska voters approved in 1998. State prosecutors, who accused her of 10 felonies and four misdemeanors, did not agree with her reading of the law.
In 2016, Egbe moved to Los Angeles, where she began hosting an online series called The Weed Show With Charlo Greene and founded a company that sells a cannabis-infused topical cream. Her case dragged on until September 2018, when Egbe pleaded guilty to a single felony count of misconduct involving a controlled substance. Under the plea deal, Egbe agreed to pay a $10,000 fine and forfeit property seized in the raid, but she will not serve any time. The felony conviction bars her from owning guns or participating in Alaska's newly legal cannabis industry.
On her show in May 2017, Egbe expressed dismay at being prosecuted even after Alaskans approved legalization. "They need to fucking stop," she said. "That's why we voted to change the law in the first place." While the criminal case was not an obstacle to starting a marijuana business in California, "there's always that cloud that kind of follows everything that I do."
Someone in Egbe's position has no realistic hope for relief under current Alaska law, which does not allow sealing or expungement of valid convictions. A pardon from the governor, while it does not expunge a criminal record, removes legal disabilities such as loss of gun rights and automatic exclusion from state-licensed professions. But only three pardons have been granted since 1995, and none has been granted since 2006. A new clemency process was implemented in 2018, requiring people who had previously sought pardons to file new applications.
In 2018, state Rep. Harriet Drummond (D–Anchorage) introduced a bill that would have removed the conviction records of people caught with less than an ounce of marijuana from the Alaska Court System's publicly accessible online database. Noting the bill on her show last March, Egbe observed that "of course people will want it removed from their records, so they can get jobs and live their lives without being treated like criminals."
From 2007 through 2017, there were more than 700 convictions that would have been covered by Drummond's bill, which did not get a floor vote. Patrick Fitzgerald, Drummond's legislative aide, says even such petty convictions can block promotions, doom university applications, and boost insurance premiums and interest rates on loans.
"Alaskans who've been convicted should not be passed up for employment opportunities or career advances for possessing something that is now legal," Drummond said when she introduced her bill. She said she wanted to "eliminate a barrier that has kept people from achieving their full potential and open new opportunities for those who may have been limited because of their record."
Legalization approved: 2016
Who approved it: voters (Proposition 64)
What's legal: public possession of up to an ounce, home cultivation of up to six plants, commercial production and distribution
'A Blow to the Stomach'
Growing up in the public housing projects of San Francisco's Hunters Point neighborhood, Rodney Hampton started selling marijuana for pocket money at 13. Just before his 19th birthday in 1991, he was busted with a bunch of dime bags, totaling a little more than an ounce.
After a day in jail, Hampton got a lecture from his mother, who had to remove his name from the lease to avoid eviction. He applied for jobs at fast food restaurants where the supervisors seemed impressed that he was trying to turn his life around but nevertheless said it was against policy to hire anyone with a drug record. "That was kind of a blow to the stomach," he says.
Thanks to the intervention of his mother and a couple of benefactors at the Omega Boys Club, Hampton managed to avoid any more time behind bars and enroll at Alabama State University, notwithstanding his 1.6 GPA. After studying business administration, he spent six years at Young Community Developers, a San Francisco nonprofit, training young men with criminal records and placing them in construction apprenticeships. "That's all I'd deal with every single day," he says.
Today, Hampton is a business consultant who is seeking a marijuana retailing license. His criminal record gives him an advantage under San Francisco's Cannabis Equity Program, which aims to "foster equitable participation in the cannabis industry and create business opportunities for those negatively impacted by the War on Drugs." Hampton will be CEO of the marijuana shop and own 40 percent of the business, which is located half a mile from the block where he was arrested for selling pot almost three decades ago. His old record, he says, is "paying off now."
Thanks to Proposition 64, California's legalization initiative, people convicted of marijuana offenses based on conduct that is now legal can get their records expunged, while those whose offenses have been downgraded (from a felony to a misdemeanor, for example) can get them reclassified. In a state the size of California, the potential impact is huge.
As many as 6,000 people who were in jail or prison when the initiative passed in 2016 were eligible for resentencing, and a much larger group qualifies for expungement or reclassification of their records. From 2006 to 2015 alone, the Drug Policy Alliance (DPA) notes, more than half a million people were arrested for marijuana offenses in California. Yet as of March 2018, just 6,251 marijuana offenders had applied for relief under Proposition 64.
In January 2018, San Francisco District Attorney George Gascón announced that he would dismiss and seal some 3,000 convictions for marijuana offenses that no longer exist and review nearly 5,000 other records with an eye toward changing them from felonies to misdemeanors or from misdemeanors to infractions. "While this relief is already available pursuant to Proposition 64 for anyone with a conviction, it requires that they know it is available and retain an attorney to file the expungement paperwork," Gascón said. "Instead of waiting for the community to take action, we're taking action for the community." His counterparts in several other California jurisdictions, including San Diego, Alameda, and Sonoma counties, are following his example.
Hampton is one of the people who benefited from Gascón's review, which reduced his felony to a misdemeanor. "They initiated it," he says. "I didn't have to send anything."
A law signed by Gov. Jerry Brown (D) in September, the most ambitious marijuana expungement legislation enacted so far, aims to make Proposition 64 relief easier across the state by automating the process. It requires the California Department of Justice to review state criminal records and identify marijuana convictions that are "potentially eligible" for expungement or reclassification.
The deadline for that review is July 1, 2019, at which point prosecutors will have another year to approve the suggested changes or challenge them by arguing that offenders don't meet the eligibility requirements. Expungements and reclassifications that are not challenged by July 1, 2020, will be granted. Assemblyman Rob Bonta (D–Oakland), who introduced the bill, estimates that it could benefit as many as 218,000 people with marijuana records.
"Legalizing marijuana without also addressing the destructive nature of prohibition would be irresponsible," DPA legal fellow Rodney Holcombe says. "We cannot in good conscience legalize an activity and allow people to make money from it without repairing the harms wrought on persons who had their lives destroyed by engaging in that activity."
Legalization approved: 2012
Who approved it: voters (Amendment 64)
What's legal: public possession of up to an ounce, home cultivation of up to six plants (no more than half of them mature), commercial production and distribution
'Looking at Me As a Felon'
When he was 19, just a month from starting college, Michael Diaz-Rivera was driving around Colorado Springs with a couple of friends when he was pulled over for failing to signal a left turn. He says that he did not consent to a search but the cops looked through his car anyway, claiming the air freshener dangling from his rear-view mirror gave them probable cause, and found two bags of marijuana.
"It was probably a total of seven grams," Diaz-Rivera recalls. "It was two different strains, so I just wanted to keep them separate. That was my mistake." To the cops, multiple bags suggested intent to distribute, so Diaz-Rivera was charged with a Class 4 felony. At the advice of his public defender, he pleaded guilty to a Class 5 felony. "I wasn't smart," he says. "I just didn't know about the legal system. In hindsight, I definitely should have fought it."
Nowadays in Colorado, possessing up to an ounce of marijuana in public is legal for someone 21 or older. For a 19-year-old, it is a petty offense—"virtually nothing," says Denver defense attorney Rob Corry. But more than a decade later, Diaz-Rivera's felony conviction, which earned him four months in a work-release program and three years of probation, continues to constrain his options and warp the way people see him.
"For financial aid I had to write a long essay about my circumstances," Diaz-Rivera says, "just to be able to go to college, because of the felony." When he moved from Colorado Springs to Denver, he looked at "10 to 15 places" before he found a landlord who was willing to rent him an apartment, which was "extremely frustrating." He started jobs at a call center, an arcade, and a school, only to be told "once the paperwork went through" that "I didn't match policy, when I was completely honest the whole time."
Today, Diaz-Rivera, who graduated from Metropolitan State University of Denver with a degree in art therapy, teaches fifth-graders English language arts at an elementary school in Denver. "I am open and honest with my students that I have been to jail," he says, "but I don't go into the details." His boss, his colleagues, and some of his students' parents know about his record, which was mentioned in a local newspaper profile.
A 2017 law backed by the Drug Policy Alliance allows people convicted of marijuana misdemeanors for actions that are no longer criminal offenses in Colorado to have their records sealed, but the process is not automatic and does not apply to felonies. In December, Boulder County District Attorney Michael Dougherty and Denver Mayor Michael Hancock announced plans to proactively review and vacate low-level marijuana offenses.
Art Way, director of the DPA's Colorado office, is pushing to expand the state expungement law. "Unless the drug war's function is to make second-class citizens," he says, "there's no reason to have lifelong consequences in situations where people satisfy requirements of a fine or jail time, especially where there was little or no threat to public safety."
When he applies for a job or an apartment, Diaz-Rivera says, "before I can even talk about who I am to the community, the work I have done to overcome my past mistake, people are already looking at me as a felon. If I was able to get rid of that, I could let my true quality show."
DISTRICT OF COLUMBIA
Legalization approved: 2014
Who approved it: voters (Initiative 71)
What's legal: public possession of two ounces or less, home cultivation of up to six plants (half of them mature), noncommercial transfers of one ounce or less
'You Can't Really Erase It'
Peter Alvarez's first pot bust happened during his sophomore year in college, when he was a pulled over in Washington, D.C., because one of his taillights was not working and the officer found a blunt under the front seat. That was three years before D.C. decriminalized possession of an ounce or less.
Alvarez's second and third pot busts happened six days apart in 2013, when cops came to his apartment and found marijuana he was using to treat his epilepsy. That was about a month after the first licensed sale under the District's medical marijuana law and less than a year before D.C. voters approved Initiative 71, which legalized recreational use, public possession of up to two ounces, noncommercial sharing, and home cultivation.
A week after that vote, Mayor Vincent Gray signed into law a bill that allows the sealing of criminal records related to conduct that has been "legalized or decriminalized." With help from D.C. lawyer Paul Zukerberg, Alvarez (a pseudonym) got his first two convictions, both for simple possession, sealed pretty readily. But the third one—for possession with intent to distribute—proved trickier.
Prosecutors persuaded a judge that the amount of marijuana Alvarez possessed (which is a matter of dispute) exceeded the limits of Initiative 71. Zukerberg is urging the D.C. Court of Appeals to take a "categorical approach" in determining what conduct has been legalized. Under Initiative 71, an adult may possess at home any amount of marijuana that can be produced by six plants, and he may distribute up to an ounce at a time to other adults "without remuneration." Zukerberg therefore argues that the "least culpable act" required for Alvarez's conviction has been legalized.
The sealing process can be time-consuming, taking months or even years, and expensive, costing thousands of dollars in legal fees. While defendants who cannot afford a lawyer are entitled to one at public expense prior to conviction, Zukerberg notes, there is no such right for people trying to seal their records, which is "often more expensive." He says that helps explain why only "a tiny, tiny fraction" of D.C. marijuana offenders who meet the legal requirements have tried to get their records sealed.
In the meantime, they face the limited job opportunities that come with a criminal record. Alvarez's remaining conviction is a misdemeanor, but it was originally charged as a felony, and traces of that history can be seen in his record. The case number, for instance, includes an F. "The employers see the felony, and that's it," Zukerberg says.
Alvarez applied to Uber, Lyft, and Home Depot without success. He has a bachelor's degree in Spanish but cannot get a job as a government translator as long as he's marked by that scarlet F. "Every application that I've even looked at" asks about your criminal history, Alvarez says, "so it's discouraging."
Even when marijuana offenders manage to get their records sealed in the government's publicly available database, they don't disappear. "You can't really erase it," Zukerberg says. "That's not the way the internet works." Convictions can still show up in private databases used for background checks, steering employers away from applicants who used marijuana before it was legal. People rejected for that reason often "never know why," Zukerberg observes. "You just never get a call back."
Legalization approved: 2016
Who approved it: voters (Question 1)
What's legal: public possession of 2.5 ounces or less, transfers without remuneration, home cultivation of up to six immature and 12 mature plants, commercial production and distribution (pending)
'It Haunts Them for the Rest of Their Life'
Seamus Maguire was working for an illegal marijuana grower in Maine when the feds caught him with 20 pounds during a controlled buy. After pleading guilty to possession with intent to distribute, he served five years in federal prison. In 2016 he was released to a halfway house, which kept a list of local businesses that were willing to hire people with felony records.
"If you want to work at Burger King or McDonald's or a telemarketing office, you're fine," Maguire says. "But if you want a meaningful job that can actually provide a future, it's next to impossible."
Maguire applied for "15 or 16 jobs" in the Portland area, mostly in sales or marketing, each time checking the box indicating that he'd been convicted of a felony. "As soon as they look at that box and see that check mark," he says, "they don't go to the next page of the application." After a string of low-paying jobs, Maguire managed to get hired in 2018 as a custodian for the Westbrook School Department, which he calls "an unbelievable chance" because the money is good and "it's something I can do for 20 years."
Finding a place to live after the halfway house was also challenging. "I probably tried at least 40 places," Maguire says. "I was sort of homeless." Eventually, friends offered him a rent-to-own deal on a mobile home.
"No matter how hard a person tries to improve his life, it's the stigma of being a felon that impedes our progress," Maguire says. "We do our sentence, then live inside the felon box that will never go away."
Since Maguire was convicted under federal law, his only option for relief would be a presidential pardon, which is a pretty iffy proposition. The approval rate for pardon applications averaged about 7 percent under George W. Bush and Barack Obama.
Maguire's chances under state law would be only slightly better. Expungement in Maine is available to people who commit misdemeanors between the ages of 18 and 21. Anyone else has to seek a pardon from the governor. That lifts automatic legal barriers but does not erase the record, which is deemed "confidential" and can be viewed only for certain purposes, mainly related to law enforcement.
An offender can apply for a pardon five years after completing his sentence, and he is supposed to cite "exceptional circumstances" that make his petition worth considering. During the last decade, according to the Maine Department of Corrections, about 10 percent of pardon applications have been granted by the governor.
"It's a long process," says Nathan Hitchcock, a criminal defense attorney in Biddeford. "There's not a set guideline that if you meet these factors, then you will get a pardon. It's a case-by-case scenario."
Duckworth, a certified nursing assistant who had worked in geriatric care, opened a dispensary to serve patients who were not up to growing their own medicine. The place was raided in 2013.
In 2017, state Sen. Eric Brakey (R–Auburn) introduced a bill that would have authorized expungement for nonviolent misdemeanors and Class C felonies, including marijuana offenses. Brakey, who ran for the U.S. Senate in November 2018, did not seek re-election to the state legislature, but he hopes some of his former colleagues will pick up the ball.
"I've had a lot of constituents who come to me in situations where they made a stupid mistake and served their time, but it haunts them for the rest of their life," he says. "I had thought there would be more of an appetite to tackle this problem. I'm sure if we brought something like this out for a referendum, it would be very popular. Politicians tend to be very risk-averse, especially when it comes to relinquishing power and giving people back their freedom."
Legalization approved: 2016
Who approved it: voters (Question 4)
What's legal: public possession of up to an ounce, home cultivation of up to six plants, commercial production and distribution
'You Are Forever a Felon'
Sean Berte, a Boston firefighter who had been a cannabis consumer since he was a teenager, was trying to be discreet by growing his supply in Bridgton, Maine, where he bought a second home and hoped the state's medical marijuana law would provide some protection. But after federal drug agents discovered his grow, the story was all over the local news in Boston, which had seen a series of scandals involving pot-smoking firefighters.
Berte had 131 plants, which would have qualified him for a five-year mandatory minimum sentence if he hadn't pleaded guilty to one count of manufacturing marijuana. He served eight months in jail and federal prison, followed by three years of probation.
The conviction had a big impact on Berte's employment prospects. As a firefighter, he says, "I had savings for the first time in my life. I had a pension that I was building toward. I had security." After the house in Maine was searched, "I lost all of it."
A part-time gig selling Christmas trees before he went to prison later turned into a full-time job at a family farm, Berte says, but "I haven't made much more than minimum wage in the past eight years." A former Marine, he had thought about working for the Department of Veterans Affairs, but his felony ruled that out, along with jobs in private security.
One line of work that may be open to Berte: selling marijuana. In Massachusetts, the Cannabis Control Commission's social equity program favors applicants convicted of marijuana offenses that did not involve distribution, and Berte plans to apply for a retail license.
Under federal law, Berte says, "you are forever a felon." But if he had been convicted of a felony under Massachusetts law, he could have applied to have his record sealed after 10 years. State law says job applicants need not report sealed records in response to questions about their criminal histories, and they do not show up when employers or landlords run checks through the Massachusetts Department of Criminal Justice Information Services. Sealed records can be reviewed for specified purposes, mostly related to law enforcement.
Mike Maloney, a criminal defense attorney in Boston, says he charges clients who want to have their records sealed $3,000–$5,000. The process usually takes a few months.
A bill sponsored by state Rep. Aaron Vega (D–Holyoke) would automatically expunge all marijuana records. Maloney, who was an independent candidate for district attorney of Suffolk County (which includes Boston) in November 2018, says local prosecutors could and should seek expungement of old marijuana cases even without a new state law.
Berte's two children, a baby and a preschooler, are too young for him to talk to them about his criminal record. But they will grow up in a state where the activity that sent their dad to prison is seen as a legal hobby or a legitimate business. "I wonder what they're going to think," he says. "It's going to be an interesting conversation."
Legalization approved: 2018
Who approved it: voters (Proposal 1)
What's legal: public possession of up to 2.5 ounces, home cultivation of up to 12 plants, commercial production and distribution (pending)
'I Was Labeled As a Bad Person'
A couple of years ago, Paige was pulled over in Ferndale, Michigan, for driving without her lights on, and the officer noticed a bag of marijuana in the car. Although the bag contained just a gram or so and Paige had a state-issued card identifying her as a patient authorized to use marijuana as a medicine, she was convicted of "improper transportation," a misdemeanor.
Paige, who told her story to the Detroit Free Press and asked that her last name be withheld, was certified as a nurse's assistant when she was arrested but soon discovered that the conviction meant she could not work in a nursing home or go to nursing school. "I was so embarrassed," she told the paper. "It's definitely not something you want attached to your name."
Now in her early 20s, Paige said it took 21 months and cost $10,000 in legal fees to get her record expunged. It probably helped that in 2016, the Michigan Court of Appeals ruled that charging patients with improper transportation was inconsistent with the state's medical marijuana law.
"I was labeled as a bad person for something that was legally prescribed," Paige said. "I just wanted to show the world I wasn't a bad person."
After Michigan voters approved legalization of recreational marijuana in November, the newly elected governor, Gretchen Whitmer (D), said she'd like to help people with marijuana records shed the stigma that put Paige's life on hold. "I think that the people of Michigan have said that for conduct that would now be considered legal, no one should bear a lifelong record for that conduct," she said in a video posted to her Facebook page. "We will start taking a look at that and making some decisions and taking some action early next year." Her spokesman said "a legislative solution is probably the most likely avenue."
Michigan's current expungement statute lets someone with a criminal record ask the sentencing court to "set aside" his conviction five years after the sentence is imposed or any prison term is completed (whichever is later). One or two misdemeanors can be set aside, and a felony can be set aside if the applicant has no more than two misdemeanor convictions. A successful applicant "shall be considered not to have been previously convicted," and his official record will be visible only to the courts and law enforcement agencies.
"It's not something that you always have to have an attorney to do, but it makes the process simpler," says Sean Myers, a lawyer specializing in marijuana cases who works for the Detroit firm Cannabis Counsel. If you do hire a lawyer, he says, a straightforward case will cost $2,000–$3,000 and take three to six months to resolve. "If no one objects and the judge agrees, then usually everything goes pretty smoothly," Myers says, although he notes that "there's nothing that says the judge has to grant an expungement, and sometimes they don't."
In June, state Rep. Sheldon Neeley (D–Flint) introduced a bill that would eliminate that discretion for marijuana misdemeanors. "If marijuana becomes legal," he told a local TV station, "I don't believe that it should still be a burden on those individuals that have had these crimes placed on their permanent record. They should be expunged of that crime automatically."
The organization that backed Proposal 1, Michigan's legalization initiative, says "legal experts determined that including both expungement and cannabis legalization in a single ballot proposal would violate rules in the Michigan Constitution." Still, Myers says, it's "an issue that's near and dear to all of our hearts here, and we're going to continue fighting on that front."
Legalization approved: 2016
Who approved it: voters (Question 2)
What's legal: public possession of up to an ounce, commercial production and distribution, home cultivation of up to six plants (but only if the closest pot store is more than 25 miles away)
'We Can't Have You in the Industry'
On the day in 2010 when the Drug Enforcement Administration (DEA) raided Organic Releaf, the Las Vegas dispensary that employed Daniel Fagundes as a budtender and purchasing agent, he was not at work. That turned out to be a problem.
At the time, medical marijuana had been legal in Nevada for a decade, but the law did not authorize dispensaries. The industry has since been legalized, and owners and employees of those businesses were permitted to get licenses even if they had been convicted of drug felonies. Fagundes did not qualify for that exception, however, because he was arrested at his home, where he had been growing marijuana for Organic Releaf, about three months after the dispensary was raided.
"There were two DEA agents that were at my house the night of the raid, plus two SWAT teams, flash-bang grenades, the whole nine yards," he says. "It was absolutely insane."
In the end, the DEA was not interested in pursuing charges against Fagundes. In 2011, he pleaded guilty to a state charge of possession with intent to sell in exchange for a reduction in charges against his wife, a dental hygienist who would have lost her professional license if she had been convicted of a felony.
After serving 18 months of supervised probation, Fagundes spent three years in Southern California, where he grew marijuana for dispensaries. He moved back to Las Vegas after Nevada voters approved the 2016 ballot initiative that legalized commercial production and distribution of marijuana for recreational use.
Fagundes got a temporary work permit and a job at Top Notch THC, a newly licensed dispensary in Las Vegas. "I was able to work almost a year on that temporary card," he says, "before the state came back and said, 'No, no. Your federal background check showed that you were arrested for a drug-related felony. We can't have you in the industry.'"
Fagundes was dismayed. "The owners of those shops back in 2009 or 2010, or any of the employees that were there when they got raided, are now able to work in our industry," he says. "They are grandfathered in. The fact that I was not there that day and got busted at home keeps me out of the industry."
Under Nevada law, Fagundes can seek to have his criminal record sealed 10 years after completing his sentence, which will be 2024. "We have one of the most favorable record sealing statutes in the country," says Nicholas Wooldridge, a criminal defense attorney in Las Vegas. Generally speaking, your application will be approved as long as you wait the requisite amount of time (which varies depending on the offense) and have no intervening convictions that would start the clock again.
"People who have a criminal record don't want people to see it," Wooldridge says. "They want to make it to where they can move on with their lives. It can be difficult to get housing. It can be difficult to get a job. It's going to be an automatic disqualification for certain employers."
Today Fagundes grows hemp, a nonpsychoactive variety of cannabis, as a source of cannabidiol, which is used as a treatment for epilepsy and other ailments. He enjoys the job, which is open to people convicted of drug felonies, but would rather be growing marijuana. "I loved it," he says. "If I can get back into the industry, I will be back there as soon as I can. They're keeping one of the best growers in the state out of the industry."
Legalization approved: 2014
Who approved it: voters (Ballot Measure 91)
What's legal: public possession of up to an ounce, commercial production and distribution, home cultivation of up to four plants per household
'I Was Homeless'
When Oregon legalized medical marijuana in 1998, the ballot initiative did not authorize sources of cannabis for patients who were not up to growing their own medicine. Lori Duckworth, a certified nursing assistant who had worked in geriatric care for more than two decades, stepped into the gap with a dispensary that she and her husband ran in Medford for about five years. The place was raided by the Jackson County Sheriff's Office in 2013, just three months before Gov. John Kitzhaber (D) signed a bill legalizing such businesses.
Jackson County Sheriff Mike Winters, an old-fashioned drug warrior who had waged an unsuccessful court battle to deny medical marijuana patients permits to carry handguns, argued that the Duckworths were illegally selling cannabis under the guise of giving it away, since they accepted donations. They each faced more than two dozen charges but managed to bargain them down to a single felony: delivering more than an ounce to a medical marijuana cardholder without remuneration.
The plea deal, reached in 2014, included expungement of that charge after three years. In the meantime, Duckworth experienced life as a convicted felon.
"It was very hard to get a job," she says. "I had to move away from southern Oregon because I was such a high-profile person." Some employers "wanted to hire me because of my popularity but couldn't because of my felony," she adds. "I couldn't go back to work in the medical field because…I couldn't pass any criminal history checks. So my nursing career was completely over. The one thing I'd done all my life, I couldn't go back to." The recent felony conviction also ruled out working in the newly legal marijuana industry.
Duckworth and her husband, disqualified from owning firearms under state and federal law, had to sign their guns over to one of their children. They were even barred from seeing their 9-year-old granddaughter for four months because of a court order, related to a custody dispute, that barred the girl's mother from having contact with felons.
Duckworth, who split with her husband after the stress and strain of the criminal case, moved to Portland, where she had trouble finding a landlord who would rent to someone with a felony record. "I was homeless for about five months," she says. "I was staying in a friend's backyard, living in a tent." Nowadays, Duckworth runs a weed-friendly B&B in Portland along with cannabis activist Russ Belville and does consulting work for medical marijuana suppliers.
Oregon offenders who don't negotiate expungement as part of a plea agreement have to figure out whether they qualify and fill out an application. Aliza Kaplan, a Lewis & Clark Law School professor who runs clinics for low-income people interested in getting their records expunged, says Oregon has "incredibly confusing" rules for which offenses are eligible and under what circumstances. Offenders have to wait a certain number of years after a conviction, and subsequent offenses can block expungement for several additional years. "As long as it's a Class C felony or a misdemeanor," she says, "it can eventually be expunged, depending on what you have blocking."
The process can be expensive as well as confusing, especially for people of modest means. Applicants have to pay $80 to have the state police run their fingerprints, a $265 fee for each conviction, and $1,000–$2,500 in legal fees if they hire a lawyer.
Things can get even more complicated if someone was convicted of a high-level felony for actions that are now legal, such as growing four or fewer plants at home for personal consumption. "If you had a conviction for growing four marijuana plants from 1996," says Portland defense attorney John Lucy, "you'd have that Class A felony." When Lucy is hired by someone with that sort of record, his task is to convince the relevant district attorney and a judge that the offense should be downgraded to a category where it becomes expungeable. "We're bringing in arguments about equity or the interest of justice or general fairness—things like that," he says.
Kaplan is working with state legislators to produce a bill that would make expungement of marijuana arrests and convictions easier. Lucy, who thinks "the governor should sign a bill that simply removes all prior marijuana convictions," likens them to sodomy records. If "someone was convicted of [consensual] sodomy in 1986," he says, "they shouldn't have a sodomy conviction in 2018, because they're married to the goddamned person. This is stupid."
Legalization approved: 2018
Who approved it: legislators
What's legal: public possession of up to an ounce, home cultivation of up to six plants (two mature), noncommercial transfers of one ounce or less
Banned From Canada
When local police showed up at his door in South Burlington asking about pot in 2011, Josh Rowe, then 24, obligingly let them in and showed them his stash, which weighed about two ounces. Two years later, he was pulled over for tailgating in Addison County, and a police dog supposedly alerted to his car. He again consented to a search, which turned up an ounce in the glove compartment.
Both convictions were misdemeanors, and Rowe's direct punishment was pretty light: two weekends in jail, plus a year of probation in the first case and a week of community service in the second. But the convictions interfered with Rowe's work as a lighting designer for concerts, because they set off alarms at the Canadian border, which bands often have to cross while touring. "That's a big deal for me," he says. "There were a lot of jobs I didn't even want to try to get, because if I screw that up [by getting stopped on the way to a show], that's it."
Rowe initially got around the problem by applying for discretionary "temporary resident permits," which cost $300 each. But eventually he was told he was no longer welcome in Canada, where recreational marijuana would be legalized in 2018. He decided to get his convictions expunged.
"I have a lot of clients who attempt to go into Canada for work and can't," says Mairead O'Reilly, an attorney who works with Vermont Legal Aid and helped Rowe get unbanned in Canada. Other clients find that "sometimes even just one misdemeanor conviction on their record raises a red flag for employers."
Marijuana misdemeanors can be cleared under the state's general expungement statute or under a narrower provision for conduct that is no longer a crime. Under current state law, possessing up to an ounce (Rowe's second conviction) is legal for adults 21 or older, while possessing two ounces (Rowe's first conviction) is still a misdemeanor. More than that is a felony.
During his last week in office in January 2017, Gov. Peter Shumlin (D) issued nearly 200 pardons to people who had been convicted of possessing less than an ounce, an amount that had been decriminalized since 2013. But a pardon in Vermont is not equivalent to expungement. "The record still exists," O'Reilly says. "You just have a symbolic remedy from the governor saying, essentially, you've been forgiven." People who want to lift the lingering stigma of a criminal conviction still have to apply for expungement.
Expungement applications cost $90 each, and the process is pretty straightforward for misdemeanor possession cases, as long as the relevant district attorney stipulates that the offense qualifies. Marijuana felonies generally are not expungeable, although on the face of it, those involving conduct that is now legal in Vermont, such as home cultivation of six or fewer plants, should be.
O'Reilly is working with state legislators to make more marijuana offenses expungeable. "I think there's a pretty broad consensus here in Vermont that felony drug possession offenses need to be expungement-eligible," she says.
In 2018, Rowe toured with Willie Nelson's Outlaw Music Festival, which visited Toronto in September. He crossed the border without a problem. "I'm excited for my career," he says. "I can take some bigger jobs if I get offered them, and I don't have to worry about screwing up those relationships."
Legalization approved: 2012
Who approved it: voters (Initiative 502)
What's legal: possession of up to an ounce, commercial production and distribution
'I Look Like a Horrible Person'
The case against Tyler Markwart came down to the paper a detective used to forge a doctor's statement recommending medical marijuana. The detective gave the phony document to an informant, who used it to buy marijuana from Markwart, a designated provider for 15 patients, who grew cannabis for them at his apartment in Pullman. Because the paper was not tamper-resistant, as required by Washington's Medical Use of Marijuana Act, Markwart was barred from using compliance with that law as a defense against marijuana distribution charges.
Since Markwart owned a pistol and shotgun, he initially faced a weapon enhancement that could have resulted in a 40-year prison sentence. In the end, he served only 52 days, but it was a horrible ordeal during which Markwart, who suffers from irritable bowel syndrome and was deprived of the marijuana he uses to treat it, lost 26 pounds. After his release because of health issues in 2012, his lawyer, Douglas Hiatt, successfully argued against home confinement.
Thanks to the $5,000 fine he had to pay and the loss of income caused by his arrest, Markwart's car was repossessed, he fell behind on his student loans, and his credit rating tanked. He lost his gun rights and his voting rights, and his prospects for employment shrank dramatically. "I couldn't get a job anywhere because of these felonies," he says. "They just see 'distribution of drugs.' On paper I look like a horrible person, but when you talk to me and you look at me, I'm just a normal person."
Markwart, who studied organic agriculture at Washington State University, eventually found gigs with employers who were willing to look beyond his criminal record, mostly in the cannabis industry. "I lived all over Washington state," he says, "bouncing around looking for jobs, taking anything that I could get." He now works as a consultant for two cannabis farms in the state.
Washington has no marijuana-specific expungement process, although Seattle City Attorney Pete Holmes has promised to seek dismissal of more than 500 low-level marijuana convictions within his jurisdiction. In January, Gov. Jay Inslee (D) announced plans to pardon some 3,500 people convicted of marijuana possession misdemeanors between January 1, 1998, and December 5, 2012, when legalization took effect.
People can ask state courts to vacate their convictions, meaning that an employer or landlord who looks in the Washington State Patrol's database won't see them, as long as at least five years have elapsed and they have not committed any new crimes. The process requires approval by the district attorney in the county where the applicant was convicted, and it can cost $2,000 or so if the person hires a lawyer.
"Here's the weird part," says Seattle attorney Aaron Pelley. "You can vacate as many felonies as you want in Washington, but you can't go back and delete more than one misdemeanor conviction."
If someone was found guilty of, say, driving with a suspended license and got the record sealed, a subsequent conviction for marijuana possession will stay in the public database forever. Since many employers think "a drug is a drug and you're not a good person," Pelley observes, that minor conviction could be "an economic bullet in the head."