On January 4th of this year, Governor Jay Inslee—rumored to be considering a 2020 presidential bid—announced that he would pardon approximately 3500 persons convicted of low-level marijuana possession offenses under Washington law. The Governor made his announcement at a convention for legal cannabis enterprise; Washington legalized recreational marijuana in 2012, ushering in an era of lucrative cannabis industry and impressive tax revenues collected from its enterprise. While marijuana business booms, however, generations of Washington residents experience constraints on civic engagement based on convictions for conduct that is now legal; Governor Inslee’s pardon announcement is an effort to ameliorate those constraints. The announcement is a great first step for a state that was on the leading edge of marijuana legalization – but there is farther that our state can go to make up for the effects of past convictions.
Marijuana, like most substances subject to criminal law, was largely untouched by law until the early twentieth century. It was not until the 1930s that marijuana started garnering attention from state legislatures and Congress—spurred by associations between marijuana use and Mexican immigrants, as well as stereotypes of superhuman strength and psychosis induced by marijuana, legislatures criminalized marijuana. In the 1970s, President Richard Nixon homed in on marijuana as a drug connected to the anti-war and black communities that opposed his presidency, and made the substance a central focus of his newly-launched War on Drugs. The War on Drugs, as numerous scholars have documented, has been one waged largely against people who are poor or who are members of racial minorities; while marijuana use is fairly constant across races, for example, the ACLU reports that black Americans are 3.73 times more likely to be arrested for marijuana offenses.
Washington State has been a leader in recognizing the harms of the War on Drugs and legalizing marijuana use. Our state’s voters approved medical marijuana in 1998—two years after California first legalized medical marijuana—and, in 2012, joined Colorado as one of the first two states to legalize recreational marijuana. At the same time, Washington introduced regulations to create an entire cannabis industry that would enjoy legal protections while paying tax revenue to the state. “Cannabusiness” has been lucrative; in 2017, according to the state treasurer, sales reached $1.3 billion, producing $319 million in revenues for the state.
Washington has, however, lagged other legalization states in recognizing the harms of past convictions. California enacted legislation to address past convictions at the same time that it opted to legalize marijuana; the state’s Department of Justice is tasked with identifying marijuana convictions and expunging possession convictions; the state DOJ will also consider reducing felony convictions to misdemeanor convictions. Other states that are considering legalizing marijuana legislatively—like New Jersey—are at the same time also debating legislation to expunge past convictions.
Our state’s offerings thus could go farther. Many people are likely to have multiple marijuana offenses, and expanding relief to persons with more than one conviction would offer broader relief; we also could consider offering conviction clearance to persons convicted of felony offenses, who are likely to experience even greater collateral effects from criminal conviction.
The War on Drugs was one largely launched against Americans from minority populations, and the effects of arrests and criminal convictions thus have been borne by some of our most vulnerable community members. Governor Inslee’s pardon program is a fantastic first step towards reconciliation for the excesses for the War on Drugs, but we can do even more to assure that—while some people profit greatly from legalization, other people who were prosecuted for similar behavior are able also to enjoy full civic inclusion.
—Deborah Ahrens, William C. Oltman Professor Of Teaching Excellence And Associate Professor Of Law