Erasing Evidence of Historic Injustice: The Cannabis Criminal Records Expungement Paradox

Cannabis prohibition and its subsequent enforcement have yielded an epic societal tragedy. The decision to criminalize cannabis was a paradigm-shifting moment in legal history because it converted lawful medicinal or intoxicant seeking conduct into criminal activity, inviting government intrusion into matters previously self-controlled. Scholars increasingly recognize that prohibition was built upon a decades-long, false, media-driven narrative that “marijuana” was one of society’s worst menacing enemies. Using overtly racist propaganda, the narrative successfully captured the audience, fomenting public anxiety and unfairly demonizing cannabis and its users. This misinformation campaign ultimately led to its current status as prohibited under the federal Controlled Substances Act (“CSA”) because it ostensibly has (1) a high potential for abuse, (2) no currently accepted medical use in treatment in the United States, and (3) a lack of accepted safety for use under medical supervision. While the consequences of cannabis prohibition are still unfolding, unfortunately, one sobering conclusion may confidently be drawn: criminal enforcement of cannabis prohibition has been, and continues to be, irreparably marred by enforcement injustice. Prohibition has led, and continues to lead, to arrests and disproportionately harsh punishments when compared to the severity of the underlying behavior. Moreover, as Michelle Alexander and the ACLU documented early on, enforcement has been disproportionately exercised against a discrete subset of the larger cannabis-using population. Specifically, enforcement has been disparately borne by individuals of color, particularly Black and Latinx individuals, and by those of lower socioeconomic means. Society is just beginning to recognize, define the scope of, and process this injustice. The vestiges of this unjust enforcement persist through its lingering trail: an individual’s cannabis criminal enforcement record. Known as “collateral consequences,” these negative effects linger—some for long periods that might last generations—without some form of mitigating criminal “record relief.” Expungement is widely hailed as the most fulsome of the record-relieving options because it offers complete erasure of the record. This Article agrees, yet posits that while expungement is a laudable and necessary remedy to mitigate individual cannabis criminal record-based harm, expungement also yields an outcome paradox: to further justice by expunging criminal records, society is erasing evidence of historic enforcement injustice. Because society needs to balance individual relief with the need to maintain a historical account of this legal enforcement era, this Essay suggests that expunging entities maintain a curated record—one that eliminates, to the extent possible, sensitive personally identifying information, while maintaining other important information of historic and legal value. Policy makers will still need to consider the (1) expungement recipients’ potential future need for their criminal records, (2) data privacy principles to protect any retained expungement records, and (3) mechanisms to incentivize and fund large-scale expungement efforts. Erase the individual’s record without erasing history.