5 states just passed ballot measures to legalize marijuana, but policy experts say people already in prison on drug convictions have a hard path to freedom

5 states just passed ballot measures to legalize marijuana, but policy experts say people already in prison on drug convictions have a hard path to freedom


Hollis Johnson/Business Insider
  • Five states — New Jersey, Mississippi, Arizona, Montana, and South Dakota — voted to legalize marijuana in ballot measures during Tuesday’s election. 

  • Arizona, Montana, and New Jersey voted to legalize the recreational possession of marijuana by adults, while Mississippi voted to legalize the medical use of marijuana. South Dakota voted to legalize both. 

  • Marijuana legalization policy experts told Insider that while the votes are a “huge step” toward national legalization, the decisions might have little impact on people behind bars on marijuana convictions.

  • Visit Business Insider’s homepage for more stories.

Video: The racist origins of marijuana prohibition

Five states voted to legalize marijuana in ballot measures during Tuesday’s election, though the decisions might have little impact on people behind bars facing drug convictions. 

Marijuana legalization policy experts told Insider that the votes in New Jersey, Mississippi, Arizona, Montana, and South Dakota were a “huge step” toward national legalization, but said the laws don’t do enough to help criminal justice reform.

“It doesn’t make sense for people to be rotting in jail for crimes that are now legalized,” Morgan Fox, media relations director at the National Cannabis Industry Association, told Insider.

Arizona, Montana, and New Jersey voted to legalize the recreational possession of marijuana by adults in Tuesday’s election, while voters in Mississippi approved the legalization of medical marijuana. Voters in South Dakota, meanwhile, approved both medical and recreational use of marijuana.

With Tuesday’s votes, 35 states and Washington, DC, have now passed or voted to pass medical marijuana access laws, while 15 and Washington, DC, have passed or voted to passed recreational marijuana access laws.

But in many states, there isn’t an automatic process to expunge — or seal — prior marijuana convictions from a person’s criminal record. Further, some states require inmates behind bars to file petitions for re-sentencings or dismissals of marijuana charges.

Getting a marijuana conviction expunged is difficult in many states where the drug is legalized

Sixty-seven percent of Americans polled by Pew Research last year said marijuana should be legalized, and while the legal marijuana industry could be a multi-billion dollar industry in the US, Insider reported last year that it’s currently costing Americans billions of dollars annually through possession arrests, court cases, and incarceration rates.

The National Organization for the Reform of Marijuana Laws (NORML) reports on its website that only five states — New Jersey, California, Illinois, New York, and Vermont — have an automatic expungement process, which allows people with prior marijuana convictions to have the charges sealed on their criminal record. Other states require people to petition the conviction in court.

A woman holds marijuana for sale at the MedMen store in West Hollywood Reuters

Arizona and Montana provided language about expungement or re-sentencings in their ballot measures for Tuesday’s election, both require petitioning.

Sarah Gersten, executive director and general counsel at the Last Prisoner Project, an organization dedicated to bringing restorative justice to the cannabis industry, told Insider that the process of getting re-sentenced or having a retroactive release is also difficult because of petition laws.

She said privacy laws create further barriers between inmates and re-sentencing and retroactive release programs, and petitions are made more difficult for inmates to understand through legal jargon, language barriers among inmates for which English is not their first language, and by a lack of finances among inmates that could help fund legal representation.

“If you’re currently incarcerated, especially right now during the pandemic, there are so many restrictions on communication, on accessing this type of information,” Gersten added. “It might be really, really difficult to know what you would be eligible for with this type of law.”

New legalization laws could help communities disproportionately impacted by marijuana arrests

While it could take a long time for prisoners charged with marijuana crimes to feel the impact of the new laws, Gersten and Fox said that legalizing marijuana can help prevent arrests in marginalized and minority areas.

They said states should use tax revenue from newly legal cannabis industries to provide capital and programs to people in communities disproportionately impacted by marijuana arrests so they can actually access the legal industry.

“The best way to address that is making sure there are low barriers to entry like low license fees, no license caps, which introduce competition in the license phase instead of the market where it belongs, and investing in community programs and providing resources,” Fox said.

Federal laws still prohibit interstate commerce of marijuana, but Fox said that it will be interesting to watch how more rural states like South Dakota and Montana take on their marijuana market.

“There might be a lot of people that are very interested in getting into the cultivation side in all of these states, but it’s limited in that they can only operate in that state market. It’s limited to the consumer base,” he said.

Ultimately, the legalization in five new states is a sign of what could come, Paul Armentano, Deputy Director of NORML, told Insider in a statement.

“Voters’ actions last evening were an unequivocal rebuke to the longstanding policy of federal marijuana prohibition, and is an indication that marijuana legalization is far from a ‘fringe’ issue, but rather one that is now embraced by mainstream America,” he said. “For over two decades, the public has spoken loudly and clearly. They favor ending the failed policies of marijuana prohibition and replacing it with a policy of legalization, regulation, taxation, and public education. Elected officials — at both the state and federal level — ought to be listening.”

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