Why Expunge Cannabis Records in Maryland?
As states change their cannabis laws, an important piece of the puzzle often affects those caught up in relatively recent cannabis over-prosecution. From social equity programs giving advantages in licensing to individuals with prior convictions or those located in ‘over-prosecuted’ areas to expunging cannabis convictions from criminal records, the idea is straight-forward. If we (collectively) are saying that cannabis sales or use should not be prosecuted and businesses can develop the market, then what about the people whose lives have been affected by years of prosecution.
In law school, students learn about the concepts of Malum in se and Malum prohibitum. In short, and not necessarily making my professors proud: ‘Malum’ translates to ‘evil’ in English. ‘In se’ translates to ‘in itself.’ ‘Prohibitum’ translates to ‘prohibited.’
So:
Malum in se – translates to ‘evil in itself,’ so a wrong that is an evil in itself is a wrong that violates our moral code. Murder, assault, robbery, and fraud are all wrongs punished by society because they are wrongs in of themselves.
Malum prohibitum – on the other hand, translates to ‘evil [because it is] prohibited.’ These are wrongs that are punishable by society simply because we have decided to say they are wrong. Parking for an hour and ten minutes in the one-hour spot is not inherently evil, it is wrong because we have decided to make it a wrong. Perhaps we want to keep traffic flowing or encourage turnover of the spots in front of businesses, but for some reason we have decided to create a law or regulation that makes certain conduct punishable. Sure, you can play mental gymnastics if you want – is it a moral wrong to park in handicapped parking or to drive 100 mph? – but the general idea is clear. Malum in se crimes are evil because they are evil and malum prohibitum crimes are crimes that exist because someone decided to make them crimes.
Now, back to cannabis. For much of the past 100 years, many argued that the sale, use, or possession of marijuana was a malum in se. Cannabis and other drug use was a moral wrong. Cannabis faced stiff prosecution because it was an evil in of itself and needed to be treated as such. Many of the people initially making those arguments had made the same arguments about alcohol a decade before, had seen our country try to treat alcohol as an evil in of itself, and watched the way prohibition fueled crime and crumbled when people finally said, ‘this is bonkers.’ They moved on to cannabis and argued it was a Mexican scourge on the country, and that cannabis use would leave all ‘feeble minded’ and end our American experiment.
Many bought in and, over generations, clamped down. Mass-incarceration for non-violent drug possession became a thing – and played out similarly to incarceration trends following reconstruction, largely funneling minority populations into jails and prisons.
From 1996, when California legalized medical use of cannabis, through 2012, when Colorado voters legalized recreational cannabis (adult-use), to the present, the malum in se view of cannabis has largely been de-bunked. With an increasing understanding that cannabis was really a malum prohibitum and people increasingly saying that it is not a malum at all1, people are asking ‘why, if cannabis was just wrong because some guy said it was wrong, and we are now saying it is fine, are peoples’ lives upended for violating laws we don’t think should have existed in the first place?’
That is the entire basis for social equity programs and criminal record expungement. If certain places (normally lower income, higher minority population areas) were over-policed for cannabis prosecutions – sometimes because there was a strategy that policing smaller crimes would prevent and/or solve larger crimes – shouldn’t those places have some opportunity in our ‘now-ok’ cannabis market beyond hearing many of the same voices who championed enforcement say, ‘our bad’?
Social equity programs, admittedly sometimes ill-formed, attempt to address some past over-policing and targeted enforcement by directing some of the potential of the legal cannabis market to those areas. But such programs do not directly address some lasting ramifications of cannabis enforcement – specifically, the countless individuals, many black or brown, that carry the stigma of cannabis convictions with them as they try to find jobs or simply try to live in a society where criminal convictions carry such stigma.
Enter expungement – the ability to take a magic eraser to parts of a criminal record.
States are addressing expungement of cannabis convictions differently. Sometimes it is a process you might be comfortable tackling yourself, where there is a straight-forward application process. Other states have not been able to help themselves from creating an awkward process where different records are handled in different ways. Still other states are starting down the expungement road and processes will change over time. Maryland’s program combines the most straight-forward and simple of processes – automatic expungement of cannabis convictions – with a more cumbersome process (for convictions that contain both cannabis and non-cannabis counts).
When Maryland citizens voted overwhelmingly in to legalize adult-use in November 2022, the vote triggered implementation of legislation that addressed many of the issues that go hand-in-hand with legalization. It would be more accurate to say the legislation addressed how many of the issues that go hand in hand with legalization would be addressed (or perhaps I should say might be addressed, right Virginia? That overweight guy in the red suit might actually not be Santa). One part of that triggered regulatory framework provided that Maryland’s Department of Public Safety and Correctional Services must automatically expunge criminal records of many cannabis convictions on July 1, 2024.2
That automatic expungement, though, only applies where there is solely a cannabis possession charge at issue. Where someone has multiple charges – say a cannabis possession charge and a gun charge, etc., or perhaps cannabis and reckless driving – he or she would have to file a petition to have the cannabis conviction expunged.
For individuals incarcerated for cannabis possession convictions, the Maryland law allows for petitions for re-sentencing. At re-sentencing, the law would require judges to sentence the petitioner to time-served (release them from jail) and then the person could either have their conviction automatically expunged or go through the petition process.
In all likelihood, Maryland’s new governor, Wes Moore, will pardon those currently serving time because of a cannabis possession charge – just as President Joe Biden did for those incarcerated on federal charges. A state pardon would have a much greater impact than the federal pardon because of the exponential difference between those currently serving time for federal cannabis convictions versus those serving for state cannabis convictions (state cannabis convictions being the much much larger number).
Proposed legislation in Maryland would be triggered by any such pardon and would expand automatic expungement to cannabis charges in a multi-charge conviction.3
With proposed legislation yet to be passed and dependent on action yet to take place, the expungement process for cannabis convictions is fluid to say the least. But the basic question underlying it all is simply ‘when the powers that be (or we as voters) say that what used to be considered a wrong is not so malum after all - and maybe is even sort of hip or a way to make some money - what are we doing about all those who weren’t treated as hip - the ones that have had their lives and families upended and have been branded with a scarlet C?’
Every time a medical cannabis customer walks into a dispensary or each time someone at a football game pulls out a vape pen or gummy and gives a nod to a friend, that should be a question that pops up on their phone.
The expungement process can be simple - and it can get quite complicated. Should you need advice or assistance with the process, please email.
Also, if you have a topic you would like to see addressed or a question about the law or legal process - let me know. I’ll try to get you an answer and if it is something that I find interesting as well, it might show up in a future post.
https://abovethelaw.com/2022/09/study-further-helps-destigmatize-cannabis-use/
But even while automatic expungement seems easy and clean, the devil is in the details. Lawmakers used a definition of expungement that would apply to the state’s Criminal Justice Information System (CJIS), but not all court records.
https://thedailyrecord.com/2023/01/01/expungement-reforms-on-md-lawmakers-agenda-in-2023-session.
An interesting question I have not seen discussed would be what impact state pardons and expungement will have on those incarcerated in the interstate and private prison systems. If a state legalizes cannabis, pardons those serving time on cannabis convictions, and expunges the criminal records for past convictions, will it also take steps to say that individuals convicted on those same or similar charges from other states can be housed in prisons located in-state? State prisoners serving outside of their conviction state account for less than 2% of the state prison population – but that is still between 10,000 and 20,000 state prisoners.
See https://journalistsresource.org/home/prisoner-transfer-emma-kaufman/