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Great Harm, Meager Remedy? Assessing the Risk of Racially Disparate Restorative Remedies in the Wake of Cannabis Legalization

Great Harm, Meager Remedy? Assessing the Risk of Racially Disparate Restorative Remedies in the Wake of Cannabis Legalization

David Kahn

            At its peak in 2009, the incarceration rate in the United States was the highest in the world, as was the total number of people incarcerated: 2.3 million Americans were incarcerated, 720 out of every 100,000 people.[1] This explosion in the rate of incarceration was enabled by the politics of white reaction.[2] African-Americans are incarcerated for drug convictions far beyond the proportion of the overall, or the drug-using, population that they represent.[3] African-Americans face a 3.73 times greater likelihood of arrest for possession of marijuana than white people,[4] despite similar rates of marijuana use.[5] Among the most insidious harms done by the War on Drugs are the “collateral consequences” that result from criminal convictions, which include critical components of the social safety net, access to economic opportunities, and even parental rights and resources.[6] These consequences have broadened in scope and deepened in reach concurrent with the “tough on crime” reactionary politics as exemplified by the War on Drugs.[7]

            Public support for ending marijuana prohibition has “more than doubled” since the late 1990s, while support for incarcerating marijuana users has fallen by half.[8] Support for recreational marijuana use is about 60% nationwide.[9] African-Americans continue to suffer disproportionate harm.[10] In Massachusetts, in the wake of reform measures, the arrest rate for African-Americans went from being 3.4 times that of whites in 2008 to 5.4 times in 2009.[11] Even as the consensus around marijuana prohibition evaporates and decriminalization, and even legalization, gain momentum, racialized harms resulting from the War on Drugs do not necessarily “naturally” recede.[12]

            One potential remedy for the harms done by over-carceral policies is expungement.[13] Many states have begun to implement expungement as a remedy to the ills of mass-incarceration. Several states that have ended the prohibition on marijuana have considered or enacted statutes to facilitate expungement for certain categories of marijuana convictions.[14]

            Part I of this Note will survey expungement policies in states that have legalized marijuana. Part II of this note will assess the likely strengths and weaknesses of those policies in terms of their ability to address racially disparate harms done by marijuana prohibition. Finally, Part III of this Note will  propose a model expungement policy to remedy the harms done to African-American individuals and communities.


[1]Ernest Drucker, Drug Law, Mass Incarceration, and Public Health, 91 Or. L. Rev. 1097, 1099 (2013).

[2]Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 47–50 (The New Press, revised ed. 2011) (summarizing how “tough on crime” politics exploited racialized fears of instability and unrest).

[3]Renford Reese, Prison Race 111 (Carolina Academic Press, 2006).

[4]The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests, Am. Civ. Liberty Union 17 (2013), [hereinafter Marijuana in Black and White].


[6]See Invisible Punishment: The Collateral Consequences of Mass Imprisonment (Marc Mauer & Meda Chesney-Lind eds., 2002) (listing “. . . be[ing] denied public housing, welfare benefits, the mobility necessary to access jobs that require driving, child support, parental rights, the ability to obtain an education. . .” as collateral consequences).

[7]Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 637–38 (2006).


[9]Christopher Ingraham, More people were arrested last year over pot than for murder, rape, aggravated assault and robbery — combined, Wash. Post(Sep. 26, 2017),

[10]Marijuana in Black and White, supra note 4, at 9.

[11]Rick Jones, Coming and Going: Racial Disparity in the Punishment and Profit of Marijuana, Champion, December 2017, at 5.

[12]Douglas A. Berman, Leveraging Marijuana Reform to Enhance Expungement Practices, 30 Fed. Sent’g Rep. 305, n.47 (2018) (listing studies of continued racial disparities in the wake of legalization and decriminalization)

[13]Id. at 308  (2018)

[14]Marijuana Overview, National Conference of State Legislatures (July 10, 2018),

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