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Undoing the Damage of the Drug War

Clearing criminal records for past marijuana offenses has become a central focus of the cannabis movement — but how do those records actually get cleared?

undoing the damage of the drug war

A criminal record, even for something as seemingly minor as weed possession, can serve as a lifelong stain, preventing someone from getting a job, a house, an education, or a loan. A few states, in legalizing marijuana, have attempted to rectify the great disparity between the wealthy white men now coming in to push joints, and the disproportionately poor and black populations whose lives are still obstructed by the fact that they used to push joints, years ago. Oregon was the first to make criminal record-clearing available for weed-related crimes, back in 2015; California and a handful of others followed.

But actually getting your criminal record changed can involve enormous financial and legal hurdles. In the two years since California voters passed legalization, L.A. County officials estimated that fewer than a thousand people out of an estimated 60,000 to 100,000 who are eligible petitioned to change or clear their minor weed convictions.

“Often folks are having to petition courts on their own, which can be very time intensive and confusing,” says Rodney Holcombe, a staff attorney at the Drug Policy Alliance. “Not everyone has the resources to pay an attorney.”

This has created the so-called “second chance gap” — the inequity between those who can afford to get a pot crime off their record, and those who cannot. Now, for the first time, a few places are beginning to address this problem directly, with automated record-sealing. The idea is simple: an algorithm goes through a database and changes all of the relevant records, without the people affected even needing to fill out any forms in triplicate.

Research suggests that sealing criminal records makes someone less likely to return to prison, more likely to get a job, and more likely to earn more money. Since 2012, every state except for Hawaii and North Dakota has passed some kind of new law attempting to help those with criminal records secure jobs and housing. But even in places like Delaware or Rhode Island, both of which passed laws last year making it easier for those with marijuana possession convictions to clear their records, the second-chance gap remains.

So last year, the conversation changed. The turn toward automated record-clearing kicked off in Pennsylvania, where Sharon Dietrich, the litigation director of Community Legal Services of Philadelphia, has been working on this issue for the past 25 years. With the support of the conservative state senator Scott Wagner, who was simultaneously running for governor as a Republican, Dietrich helped conceive of a Clean Slate law that would use an automated computer process to clear all non-violent first-degree misdemeanors and most simple assault convictions more than 10 years old from people’s records.

“This was the most remarkable legislation I’ve ever been involved with, because basically everybody agreed that it was a good idea,” Dietrich says. When the bill started to stall, members of the Philadelphia Eagles came to the capitol to lobby for it, she said, and the conservative Koch brothers indicated their support behind the scenes. The legislation passed in June of 2018, establishing an automated process that is set to begin in 2020.

“A significant number of marijuana convictions will get sealed,” Dietrich says.

A few months later, the California legislature passed a cannabis-specific bill, intended to automate the weed crime record-clearing that was made possible by legalization.

“Now, the burden is no longer on the person who was convicted” says Holcombe, who helped make the California law happen. Over 200,000 convictions are eligible, state-wide, though the process will take at least two years, giving the Department of Justice time to review all of the relevant cases, local prosecutors time to object, and the state time to implement the technology.

For some places, automation in criminal record-clearing hit a snag once local officials looked into the details of how to actually make it happen. Vermont passed a law in 2018 ordering the systemic sealing of all criminal cases that did not end in a conviction, such as when someone is found not-guilty, but a study group around automation said the state wasn’t ready, citing “technical obstacles” and “resource challenges.”

Dietrich, the woman behind the law in Pennsylvania, acknowledged that her state had an advantage there. “We had nice centralized databases that already talked to each other,” she explained. “There’s a huge tech piece to it, and in some ways that’s the biggest challenge for the states that want to do it.”

Each state has its own system of storing criminal records and of sharing that information between agencies. While one place might easily be able to run an algorithm that finds every instance of a specific criminal code within a given field and then instantly repopulate that field across every record in the state, others have discrete, siloed databases that could require painstaking work. And of course, governments are often notoriously slow at getting up to speed in the digital age.

SAN FRANCISCO, CA - OCTOBER 15: Jennifer Pahlka attends WIRED25 Summit: WIRED Celebrates 25th Anniversary With Tech Icons Of The Past & Future on October 15, 2018 in San Francisco, California. (Photo by Phillip Faraone/Getty Images for WIRED25 )

Jennifer Pahlka attends WIRED25 Summit: WIRED Celebrates 25th Anniversary With Tech Icons Of The Past & Future on October 15, 2018 in San Francisco, California. Photo credit: Phillip Faraone/Getty Images

Jennifer Pahlka, executive director and founder of the ambitious government technology non-profit Code for America, thinks that bureaucrats and elected officials are overestimating the difficulties of syncing and updating criminal record information across databases. “The tech isn’t hard,” she says. “The barrier is political will, and administrative issues,” including getting permission to work with the data. Simply getting access to the relevant databases can be just as much of a red-tape headache as applying to have a single record changed.

“I can’t just walk up to the state Department of Justice office and be like, ‘Hi, I’d like to come and look at your database and maybe change some things?’” Pahlka says. “They have, correctly, put in a whole bunch of safeguards about the use of the data and who can even look at it. Safeguards are important, but we need people to look at the safeguards and say, this is what the safeguards were intended for and this is what is actually happening.”

Last year, Pahlka and Code for America partnered with the San Francisco District Attorney’s office for a pilot program that will automate the removal of over 8,000 cannabis criminal records.

“Too often, government folks think, ‘OK, technology is involved, therefore I must write a thousand-page proposal that contains 7,000 different features and take it to the government contracting ecosystem and like five years later someone will give me a technology solution,’”

Pahlka says. “And what we have been saying is, ‘No. Go to the database, change the record.’”

Coming off their success in San Francisco, Code for America has announced partnerships in Los Angeles, Sacramento, and is in talks in Chicago; the organization is interested of doing the work of clearing records “at huge scale.” Already, a bill similar to the one that passed in Pennsylvania has been signed by the governor in Utah, and Senator Cory Booker has included automated expungements in his Marijuana Justice Act, which is supported by many of the 2020 Democratic presidential candidates.

Still, not everyone is optimistic. In the largest legal cannabis center, Los Angeles, many of the promises local government has made around the social justice aspects of marijuana legalization have not been kept. A licensing program the city announced at the end of 2017 that intended to prioritize the people most affected by the War on Drugs has yet to be funded. Many activists remain wary of how the local district attorney could interfere with the new automation law.

“I think implementation is always up in the air until it happens,” says Adam Vine, the co-founder of a restorative-justice-focused organization called Cage-Free Cannabis. “I don’t think we should trust the state that was responsible for all these convictions to get it right when it comes to expungement.”

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