Should we punish people for crimes that no longer exist? This question has arisen in states like Massachusetts that have legalized cannabis for medicinal and recreational use.
As people across the Commonwealth recover from the pandemic and internalize lessons from movements for racial justice, such as the disproportionate cost of the War on Drugs on communities of color, the answer has become overwhelmingly clear: no.
However, despite our progress, Massachusetts is far behind its goals for restorative justice and providing opportunity to those most harmed by ill-conceived and inequitable policies.
Although cannabis remains criminalized at the federal level, Massachusetts has been a modern leader in liberalizing laws concerning the substance. In 2008, Massachusetts voters chose to decriminalize possession of up to one ounce per person. In 2012, we passed a ballot measure to legalize medical marijuana. In 2016, we enacted controlled legalization, allowing adults to possess a maximum of one ounce on their person and 10 ounces in their homes.
These victories did not occur arbitrarily. Rather, they owe their existence to decades of activism from the most impacted communities. Proponents of legalization understood that the War on Drugs was not just a policy failure, but a war on people of color. According to the ACLU, Black people are nearly four times as likely to be arrested for cannabis than white people in the US, even though they use the substance at roughly the same rate. Despite our relatively progressive laws, Massachusetts does not escape this trend. Although Black people represented 5% to 7% of the state population from 2000-2010, they constituted 14% of cannabis-related arrests. Suffolk County data is even more troubling: from 2014-2019, 50% of people charged with Class D possession of marijuana were Black, even though they comprised 22% of the population.
Although the most harmful rules no longer apply, their impacts are still felt. In Massachusetts, interactions with the criminal justice system (such as conviction and non-conviction data) are gathered in the form of a Criminal Offender Record Information, or “CORI.” For decades, a less than perfect CORI has prevented people from accessing employment, housing loans, and community engagement opportunities (i.e. adoption, school volunteering).
While some may argue that employers and landlords should have the right to deny opportunities to people with marks on their CORI, it is difficult to justify why people should continue to face punishment for transgressions society deems are no longer, well, transgressions. Additionally, people who served time in prison for cannabis-related offenses should receive support upon release, not barriers to reintegration. This legal discrimination perpetuates a cycle of poverty and culture of alienation that increases the likelihood of recidivism. Finally, given that the CORI shows all interactions with the criminal justice system, non-convictions resulting from mistaken identity and racial profiling are often the basis for denying opportunity. Cannabis offenses on a CORI punish our neighbors at unequal rates and with disproportionate force.
In 2018, the Massachusetts legislature recognized the importance of remedying this harm, enacting the Massachusetts Criminal Justice Reform Law. The law offered a pathway for individuals to seal (hide) or expunge (erase) criminal records for offenses that are no longer crimes. While the most egregious (and/or still illegal) offenses remain permanent (i.e. firearm convictions), people could finally take legal action to build a better future for themselves and their families. Upon sealing a CORI, landlords and employers are unable to see past offenses, although police and some institutions (i.e. daycares) have heightened access.
However, these new opportunities to seal and expunge parts of one’s CORI remain inaccessible and underutilized by the general public. Six months after the new system began, only 12 convictions from 219 requests for expungement were granted. Critics claim that this lack of utilization stems from the failure of the state to reach out to the most affected communities and inform them of their options. They also condemn the government’s lack of urgency to promote the new pathways; even though state law required the governor’s executive office of public safety and security to create a public awareness campaign to educate eligible people about CORI sealing and expungement, it did not. This failure is an insult to Massachusetts voters and directly impacted residents, made worse by the fact that this year Vermont and New York adopted measures to expunge misdemeanor records related to cannabis convictions automatically. Prosecutors in Chicago, San Francisco, Seattle, and Los Angeles have taken similar steps. Meanwhile, a bill filed by state Rep. Chynah Tyler (D-7th Suffolk) in the Massachusetts State House, requiring the state to erase all past cannabis possession cases, has stalled. Our current system places the entire burden on the individual, undermining the effectiveness of the Massachusetts Criminal Justice Reform Law when it does not have to. The process is complicated, lengthy, and costly, disincentivizing the most impacted from completing it (even if they know it exists). Flawed and inadequate even before COVID-induced court shutdowns, backlogs and limited system access now present near insurmountable obstacles to unrepresented petitioners.
For these reasons, the Safety Net Project of Harvard Law School’s Legal Services Center is hosting free virtual seminars to help people seal their CORI. Our next seminar will take place on July 30th from 2:00-4:30pm. Register at the link: https://bit.ly/LSCCORI.
Andrew Steinberg is a student advocate for the Safety Net Project at Legal Services Center.