By Emily Ledger
In the last decade, many US states and Canada have taken significant action to legalise the adult-use of recreational Cannabis. Amongst the legislation that allowed the development of this new industry were plans to grant pardons for some past Cannabis-related convictions. But how effective have the Cannabis pardons in North America actually been for citizens?
We’re taking a look at some of the shortcomings of current policy in places that have legalised the plant…
What is the Point of Granting Pardons?
Having a criminal conviction, even a seemingly small one, like simple possession of Cannabis for personal use, can significantly affect many aspects of a person’s life. For example, a conviction could prevent access to employment, housing, loans, and travel. Each jurisdiction in North America has a slightly different approach to Cannabis pardons.
Canada’s Cannabis Pardons
Almost eight months after Canada became the first G7 country to legalise Cannabis, the Liberal government introduced a new application system for Cannabis-related pardons. New legislation ensured that the previous $631 application fee and long waiting periods for Cannabis pardons were waived.
Pardons can be granted for citizens with a simple possession charge which was issued in the prohibition era. Estimates from the government showed that 10,000 (plus) citizens could be eligible for a pardon. Canadian news outlet, CBC, puts the figure at closer to 500,000. However, as of December 2019, only a small number of people had successfully received pardons.
US States Cannabis Pardons
In the USA, Cannabis with more than 0.3% THC remains illegal at the federal level. However, many states have opted to legalise the recreational use of the plant and build a new legal market in their jurisdiction. Currently, California, Nevada, Oregon, Illinois, Washington D.C, Ohio, Michigan, Alaska, Missouri, Colorado, Maine, Massachusetts, Maine, and Washington have all legalised adult use of recreational Cannabis.
Each of the jurisdictions also planned to offer pardons to citizens charged with Cannabis-related offenses. However, the exact details of the offenses that are eligible for a pardon can differ from state to state. For example, pardon requirements for the amount of Cannabis in possession may differ.
Cannabis Pardons don’t Go Far Enough
Since the introduction of Cannabis offense-related pardons, many critics have claimed that some existing measures don’t go far enough – particularly in Canada.
Canada: Pardons Vs. Expungements
Many in Canda feel that lawmakers’ decision to grant pardons, as opposed to expungements, for prohibition-era Cannabis offenses is unjustified. A pardon – or a record suspension – does not remove the charge completely. Instead, it effectively moves the record from one place to another.
Those who may look (more on this later), may still discover that an individual has faced an arrest and criminal charge. What’s more, a pardon can technically be revoked. Through the Criminal Records Act, a parole board may revoke a pardon on the grounds that an individual is “no longer of good conduct” – even if the person has not been charged with a subsequent offense.
In contrast, an expungement completely erases the record of the offense. Expungement immediately removes any stigma on the individual, and cannot be revoked.
The Canadian government has argued in the past that past conviction for Cannabis possession is not unjust enough to warrant expungement. One case in which expungement was exercised was for those criminalised in the past for partaking in consensual same-sex relationships.
Crossing the Border
According to USA border law, an individual with prohibited substance charges may be banned for life from entry to the country. This decision can stand even in the case of simple possession. But, the main problem is, it is still possible to be banned, even if the person’s charge has been pardoned.
According to Bellingham, Wash. lawyer Scott Railton, border officers:
“Usually, what I’ve seen as a line of inquiry is that the officer doesn’t have complete information, but they have information about an arrest at some point or other, and they make further inquiries about that arrest. They develop that line of information.”
Expungements in the USA
Unlike in Canada, many states in the US have chosen to grant expungements to citizens previously criminalised for minor Cannabis offenses. California, one of the first states to legalise the drug, has even introduced blanket expungements. This removes all monetary and time responsibility from the citizens.
Other states are also following suit. With the Governor of Delaware – where the drug is still illegal – has expressed a desire to expunge the criminal records of those found in possession of small amounts of Cannabis. Delaware decriminalised Cannabis in 2012.
However, some state lawmakers did come under fire for taking too long to grant pardons and expungements.