Marijuana legalization can be a stepping stone to broader reforms of the criminal justice system, according to a forthcoming paper in the Arizona State Law Journal.
The authors focus on Arizona, where recreational marijuana was legalized through a ballot initiative last November, as an example of how reforms can be leveraged to ensure record relief to redress past marijuana convictions, and even promote decarceration through reinvestment of money saved by the reduction in drug enforcement costs.
In a paper written for a a special issue on improving Arizona’s criminal justice system, Douglas A. Berman of the Moritz College of Law at Ohio State University, and Alex Kreit, of the Salmon P. Chase College of Law at Northern Kentucky University, write that Arizona’s legalization of pot already moves towards addressing “the lingering effects of marijuana prohibition, (but) more will be required.”
Arizona residents approved the legalization of marijuana for medical purposes in 2010. Following approval of the Smart and Safe Arizona Act (SSAA), state legislators have until April 5 to establish regulations governing sales and distribution of recreational pot.
The Smart and Safe Arizona Act
Berman and Kreit argue that decriminalizing possession and cultivation of marijuana is can be used for broader criminal justice reform.
“(The Act) also seeks to actively address some of the harms done by marijuana prohibition, with provisions to allow the expungement of certain marijuana convictions, reserve some licenses for people who have been disproportionately impacted by prohibition, and create a Justice Reinvestment Fund,” the authors wrote..
While this is a victory, the authors write that its overall impact will depend greatly on its implementation over the next few years.
The Smart and Safe Arizona Act attempted to learn from the mistakes of other states that enacted expungement provisions — such as fees and lengthy application procedures. While there are no outright fees, Arizona’s act includes an “express expungement provision” that requires people with eligible conviction details to file a petition in order to clear their record.
“Barriers to the widespread use of petition-based expungement provisions like the one in the Smart and Safe Arizona Act are considerable,” the authors wrote.
“The petition process can be unclear, time consuming, and intimidating; public defender offices typically do not assist with expungement petitions; and those eligible to petition for an expungement may not even know that they qualify.”
To its credit, the authors write, the Act seeks to remedy this challenge by allocating $4 million in grants to nonprofits to support wider public education about the program.
But they note that “although outreach efforts by nonprofit organizations can help reduce systemic barriers to access to the expungement process, these groups cannot and should not be expected to redress an array of structural inequities in access to justice.”
Making sure marijuana crime records can be expunged is worth getting the process right, as record expungements will benefit not only the state — but the individual—as they reenter their community without harsh stigma or hurdles to surmount.
In terms of using the SSAA to advance broader criminal justice reforms that go beyond “providing robust retroactive ameliorative relief,” Berman and Kreit write that there’s an opportunity to use the monies generated from tax revenues to be allocated to projects addressing the injustices done and programs aimed at promoting decarceration methods through the new “Justice Reinvestment Fund.”
This fund, born out of the SSAA, is set to receive 10 percent of tax revenue to help advance public health needs and crime reduction efforts in disadvantaged communities.
But, the authors write, these are the very neighborhoods that are over policed.
A recent 2020 ACLU report cited by the authors details that “in every state that has legalized or decriminalized marijuana possession, Black people are still more likely to be arrested for possession than white people.”
In some states that have decriminalized pot, such as Maine and Massachusetts, the racial disparities in marijuana possession arrests were larger in 2018 than in 2010” before legalization.
Berman and Kreit suggest that while the “Smart and Safe Arizona Act is a development to be applauded” — a dedicated group of lawmakers and advocates can make bigger strides with a Justice Reform Commission (JRC) which would proactively work on evaluating policies and practices related to criminal justice reform issues that intersect with this new marijuana reform and broader drug policy initiatives.
“A permanent government institution is needed and justified to help tackle all these critical issues as an on-going concern, and the new resources being generated by the marijuana industry and associated taxes can and should play a foundational role in helping to create such an institution,” the authors wrote.
An independent public agency can also oversee broad applications of remedies like expungement and social harms resulting from marijuana prohibition, while creating “structure” to follow.
Lastly, a JRC could monitor the impact of all changes, offering lawmakers and advocates newfound insight into their reform efforts.
“Whatever approach policymakers in Arizona take to these issues, now that the voters have approved the Smart and Safe Arizona Act, they should be mindful of the importance in the particulars of its implementation,” the authors conclude.
Douglas A. Berman is the Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center, housed in the Moritz College of Law at Ohio State University. Berman’s primary area of research is in criminal law and sentencing.
Alex Kreit is the first director of the created Chase Center on Addiction Law & Policy, when it was established in 2020. He is an assistant professor in the Salmon P. Chase College of Law, teaching Healthcare and the Law and Criminal Law at Northern Kentucky University.
The full forthcoming report can be accessed here.
Andrea Cipriano is a TCR staff writer.