*Natalie Murphy
I. Introduction
Maryland recently voted to legalize recreational cannabis after decades of political activism on the issue.[1] However, legalization alone is not enough to fix the damage decades of racist cannabis enforcement imposed on Black Marylanders.[2] An expungement provision in Maryland’s House Bill 837 (HB 837) seeks to recognize the unequal history of marijuana enforcement.[3] The new law legalizes possession of up to 2.5 ounces of marijuana for Marylanders over twenty-one, and automatically expunges all criminal marijuana possession records.[4] How does HB 837 compare with Maryland’s prior expungement reform efforts? Could automatic marijuana possession expungements help ameliorate decades of racist marijuana enforcement as we enter the era of legalization? Maryland’s historically conservative view towards expungement reform indicates that while HB 837 represents a positive development, expungement is a necessary but insufficient tool for social equality and requires significant reformation before it can truly benefit Marylanders with criminal records.[5]
II. What is Expungement?
Expungement eliminates a criminal charge or conviction from an individual’s record.[6] Theoretically, an individual whose record has been expunged is treated as if the incident never occurred.[7] However, not all records can be expunged.[8] Many states bar expungement for violent crimes, civil offenses, or for individuals who have committed subsequent crimes.[9] Expungements are rare at the federal level, and are largely handled by state governments.[10] States vary in their expungement regimes and commonly only allow expungement after a statutory period ranging between three and fifteen years.[11]
Many people with criminal records (by some estimates, twenty-five to thirty percent of U.S. citizens[12]) welcome expungements because criminal records carry a high degree of stigma that raises many barriers.[13] Employment is a significant challenge for individuals with criminal records, and in Maryland, many potential employers seek pre-employment criminal background checks.[14] Beyond employment, housing access is often contingent on submitting a criminal record report, and the Fair Credit Reporting Act takes arrest and conviction history into account when determining credit access.[15] Some states deny benefits like SNAP (Supplemental Nutritional Program) or TANF (Temporary Assistance for Needy Families) to those with drug-related convictions.[16] Courts also consider prior criminal history when determining custody and domestic rights.[17] To complicate matters, criminal records often include arrests and non-convictions, which decision-makers without a legal background may regard negatively even though the record does not amount to a conviction.[18] By removing barriers to necessities like employment and housing, expungements serve a personal and social good by increasing opportunities for Marylanders with criminal records.[19]
Despite the social utility of expungements, the process for obtaining an expungement is often complex and lengthy.[20] Maryland recommends, but does not require, utilizing a lawyer for the expungement process.[21] Eligibility for an expungement can take up to fifteen years in Maryland, and any other charges associated with the incident in question must also be expungable.[22] Those seeking to expunge convictions must pay a $30 filing fee.[23] Assuming all forms are filled out correctly, the statutory period is met, the fees are paid, and the expungement is eligible, the approval process takes up to ninety days.[24] The process is also not always fully effective: even when expunged, many states have poor enforcement procedures that allow private agencies, like background check companies, to continue accessing records post-expungement.[25]
III. Maryland’s Expungement Reform History
Maryland historically takes a conservative approach to expungement, and has been slow to implement change despite critical holes in the State’s expungement system.[26] Maryland passed its first piece of legislation limiting public access to criminal records with the 2015 Second Chance Act (Act).[27] The Act allows individuals to “shield” possession charges, including those for marijuana, after three years.[28] Shielding makes records inaccessible to the general public but offers a lower degree of privacy than expungement.[29] Although a historic act, the legislation is riddled with exceptions, the most significant of which authorizes employers to view shielded records with permission.[30] This provision greatly hampers the Act’s intent to increase employment opportunities for Marylanders with criminal records.[31]
Maryland expanded expungement opportunities for individuals with low-level marijuana charges in the October 17, 2017 reform to Maryland Criminal Procedure § 10-105.[32] This change authorized expungement for civil marijuana possession charges of ten grams or less after four years under Maryland Criminal Procedure § 5-601.[33] Beginning October 1, 2021, Maryland implemented a rule authorizing automatic expungement after three years for marijuana possession charges concluding in acquittal, dismissal, not guilty, or nolle prosequi.[34] While both changes represent shifting norms surrounding marijuana possession records, they encompass only small changes, and are far from overhauling the possession expungement system.
Maryland’s expungement law has several additional rules complicating expungements, such as the unit rule and subsequent conviction period. Under the “unit rule,” individuals can only get a record expunged if all other charges from the incident in question are also expungable.[35] Given the number of charges Maryland considers non-expungable, this is a massive barrier for otherwise expungable charges.[36] Subsequent convictions also pose a problem for expungement—an individual convicted of another crime during the statutory waiting period is not eligible for expungement until the statutory period for the subsequent conviction terminates.[37]
IV. Expungement and Social Justice
Many states have made efforts to recognize decades of racist drug enforcement in tandem with legislation legalizing marijuana.[38] Marijuana legalization has instigated a “Green Boom” of high-profit businesses that drive hundreds of millions in state tax dollars, yet returns little to the Black and Latino communities most impacted by the War on Drugs.[39] According to Adam Vine, a marijuana justice organizer in California, pairing legalization efforts with attempts to undo old harms is crucial because otherwise, “[l]egalization is just theft.”[40] Vine suggests expungement can help repair the damage.[41] But before expungement can truly be useful for rehabilitating individuals with marijuana convictions, Maryland needs to clarify and enforce standards for the private storage of expunged records.[42] Additionally, Maryland must discontinue the practice of allowing decision makers to request expunged records—a practice that frustrated the intensions of the 2017 Second Chance Act.[43]
Even under perfected standards, expungement “should be viewed as one piece of a larger puzzle aimed at alleviating the plight of those with criminal records.”[44] Expungement alone could never ameliorate the negative impacts of a decades-long racist drug war.[45] Illinois advocates advocate for more than just expungements—they want reparations.[46] Tyrone Muhammad, a founder of Ex-Cons for Social Change, explains “[e]xpungement alone doesn’t deal with 20, 30, 50 years of incarceration and destruction to our communities by taking [B]lack men off the streets . . . [e]x-cons who were taken away for marijuana need to see our fair share of profit after all we and our families have been through.”[47]
Appropriate as Muhammed’s argument may be, paying financial reparations to Black Americans in recognition of slavery’s legacy and ties to the modern criminal legal system has yet to gain wide-spread public support.[48] Despite the amount of discussion brought by Baltimore native Ta-Nehisi Coates’s The Case for Reparations, there is even less recognition specifically surrounding reparations for racist marijuana enforcement in Maryland.[49] In light of calls for reparations and more radical approaches to recognizing the history of marijuana enforcement, expungement thus represents a necessary but small step in the right direction.
V. Conclusion
Expungement remains one of the few tools available for promoting equality in the face of shifting marijuana norms. Expungements in Maryland are already hampered by privacy exceptions and complex protocols that limit their utility. To truly confer protection to Marylanders with past possession charges, current expungement laws require significant modification. However, given Maryland’s hesitation to alter expungement laws generally, the passage of House Bill 837 marks a massive shift in state expungement protocol for marijuana that could pave the way for increased reforms elsewhere.
*Natalie Murphy is a second-year J.D. candidate at the University of Baltimore Law School. She is currently interning at the Forensics Division of the Maryland Office of the Public Defender and intends to be a public defender in Baltimore City after graduating. She is fascinated by the relationship between science and the law and thinks reading science fiction is crucial for helping everyone (but especially lawyers) imagine a better world.
[1] Nehemiah Bester & Neydin Milián, A War on Marijuana, Or a War on Black Communities?, Am. C.L. Union Md. (Feb. 2, 2022, 5:00PM), https://www.aclu-md.org/en/news/war-marijuana-or-war-black-communities.
[2] See id.
[3] Hannah Gaskill, Lawmakers Weigh the Feasibility of Expungement Post-Cannabis Legislation, Md. Matters (Oct. 28, 2021), https://www.marylandmatters.org/2021/10/28/lawmakers-weigh-the-feasibility-of-record-expungement-post-cannabis-legalization/.
[4] H.D. 837, 2022 Legis. 444th Sess. (Md. 2022).
[5] See infra section IV.
[6] Div. Pub. Ed., What is Expungement?, Am. Bar Assoc. (Nov. 20, 2018), https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-_expungement-/.
[7] Id.
[8] Brian M. Murray, Retributive Expungement, 169 U. Penn. L. Rev. 665, 689 (2021).
[9] Id.
[10] Id.
[11] Brian M. Murray, A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels, 10 Harv. L. & Pol’y Rev. 369 (2016).
[12] Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks in Employment, Nat’l Emp. L. Proj. 27, ¶ 2 (Mar. 2011), https://www.nelp.org/wp-content/uploads/2015/03/65_Million_Need_Not_Apply.pdf.
[13] Murray, supra note 10, at 365–67.
[14]Criminal Records and Employment, MD. Dept. Disabilities, https://mdtransitions.org/criminal-records-and-employment/ (last visited Jan. 3, 2022).
[15] Murray, supra note 10, at 365.
[16] Darrel Thompson & Ashley Burnside, No More Double Punishments: Lifting the Ban on SNAP and TANF for People with Prior Felony Drug Convictions, Ctr. L. & Soc. Pol’y. (Apr. 2022). https://www.clasp.org/publications/report/brief/no-more-double-punishments/.
[17] Murray, supra note 10, at 365.
[18] Kyla D. Craine & Glenn E. Martin, Returning Citizens: How Shifting Law and Policy in Maryland Will Help Individuals Return from Incarceration, 46 U. Balt. L. Forum 1, 4 (2015).
[19] Rebecca Vallas et al., A Criminal Record Shouldn’t Be a Life Sentence to Poverty, Ctr. Am. Prog. (May 28, 2021), https://www.americanprogress.org/article/criminal-record-shouldnt-life-sentence-poverty-2/s.
[20] Murray, supra note 7, at 668.
[21] Expungement: How to Expunge Court Records,MD Courts, https://mdcourts.gov/sites/default/files/court-forms/ccdccr072br.pdf (last updated Sep. 2022).
[22] Id.
[23] Id.
[24] Id.
[25] Murray, supra note 10, at 380–81.
[26] Id. at 372; Matthew R. Braun, Re-Assessing Mass Incarceration in Light of the Decriminalization of Marijuana, 49 U. Balt. L. Forum. 24, 28–9 (2018).
[27] Craine & Martin, supra note 14, at 7; Md. Code. Ann., Crim Proc. § 10-301 (West, 2022).
[28] Md. Code. Ann., Crim Proc. § 10-303 (West, 2022).
[29] Md. Code. Ann., Crim Proc. § 10-301(e) (West, 2022).
[30] Murray, supra note 10, at 370–71; Craine & Martin, supra note 17, at 7.
[31] Craine & Martin, supra note 17, at 7.
[32] Braun, supra note 20, at 29.
[33] Md. Code Ann., Crim. Law § 5-601 (West, 2022).
[34] Md. Code. Ann., Crim. Proc. § 10-105.1 (West, 2022).
[35] Md. Code Ann., Crim. Proc. § 10-107 (West, 2022).
[36] Md. State Bar Assoc., Expungements: What an Attorney Needs to Know (May 15, 2020), https://www.msba.org/expungements-what-an-attorney-needs-to-know/
[37] Md. Code Ann., Crim. Proc. § 10-110 (West, 2022).
[38] See Toni Smith-Thompson & Yusuf Abdul-Qadir, How Legalizing Cannabis Makes the Case for Reparation, Am. C. L. Union N.Y. (Apr. 9, 2021), https://www.nyclu.org/en/news/how-legalizing-cannabis-makes-case-reparations; Jenni Avens, In the Time of Luxury Cannabis, It’s Time to Talk About Drug War Reparations, Quartz Mag. (Jan. 25, 2019), https://qz.com/1482349/weed-and-reparations (describing efforts to correct past wrongs in California’ marijuana enforcement).
[39] Avens, supra note 37.
[40] Id.
[41] Id.
[42] Murray, supra note 10, at 379–380.
[43] See Murray, supra note 10, at 370; Craine & Martin, supra note 17, at 8.
[44] Murray, supra note 10, at 378.
[45] Bester & Milián, supra note 1 (explaining the enduring legacy of racism in marijuana legislation following the drug war).
[46] “If We Don’t Fight, Who Will?”: Activists Demand Reparations for Ex-Cons Convicted of Marijuana Charges in Illinois, CBS Chicago (Jul. 11, 2021) https://www.cbsnews.com/chicago/news/illinois-marijuana-convict-reparations/.
[47] Id.
[48] Avens, supra note 37.
[49] Ta-Nehisi Coates, The Case for Reparations, Atlantic (Jun. 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/.
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