The search to solve the cannabis conviction conundrum continues

As Pennsylvania’s neighbors continue to open up to the idea of legalizing cannabis for recreational use, proponents of the plant say any effort to legalize cannabis here must be paired with measures that seek to undo damage caused by decades of cannabis convictions. 

In some states, that's come in the form of local and statewide decriminalization efforts. Other jurisdictions that have fully legalized cannabis for adult use have expunged nonviolent cannabis convictions and sought to give those previously arrested on cannabis charges a leg up in the legal marketplace. 

That’s not to say there haven’t been blueprints for social equity initiatives offered by state lawmakers. Even in the absence of a legalization vote, officials in the Keystone State have taken steps to give people with cannabis convictions a clear path to expunge their records.

In 2019, under then-Lt. Gov. John Fetterman’s tenure, the Pennsylvania Board of Pardons announced an expedited review process for Pennsylvanians with low-level cannabis convictions on their record. The initiative, which applied to people convicted of low-level possession crimes, ultimately resulted in 395 people getting pardons by the time he and Gov. Tom Wolf left office. 

Then in 2022, as he was set to leave office, Wolf announced the PA Marijuana Pardon Project – a separate, one-time effort to provide pardons to people with minor cannabis convictions. Upon its conclusion, Wolf had granted 232 pardons through the initiative – a mere fraction of the more than 2,500 people who applied. 

Legalization advocates say there are other ways legislators can help those who have been hampered by marijuana-related convictions on their record, whether Pennsylvania lawmakers ultimately choose to legalize it or not. 

Convictions for marijuana-related offenses can affect a person’s ability to secure federal subsidized housing and student loans, obtain and keep employment and impact divorce and child custody proceedings, according to Patrick Nightingale, a criminal defense attorney and cannabis legalization advocate who directs the Pittsburgh chapter of the National Organization for the Reform of Marijuana Laws, or NORML.

“The collateral consequences are significant, the direct consequences are significant – and this is all over something that now is legal in 24 states and is legal medically in 38 states,” Nightingale told City & State in an interview. 

In Pennsylvania, marijuana convictions have traditionally disproportionately impacted communities of color. A 2020 report from the American Civil Liberties Union examining marijuana arrest conviction rates from 2010 to 2018 found that during that period, Black Pennsylvanians were three times more likely to be arrested for marijuana possession than white Pennsylvanians. 

As more and more states warm up to the idea of legalization for recreational use, Nightingale said the idea of retroactively expunging marijuana convictions is also becoming more commonplace. 

“Every state that has legalized has put in some type of retroactive expungement process so that people who were convicted of something that is now 100% legal can get their record cleared and move on. I think that, across the board, that should be the policy,” Nightingale said.

According to the Council of State Governments, more than 20 states have passed laws that give courts the power to expunge cannabis convictions; six of those states require eligible convictions to be automatically expunged.

Democratic state Rep. Chris Rabb, a legalization advocate who has introduced several bills to update the state’s medical program by bolstering protections for cannabis consumers and businesses, pointed to Illinois as a state that has received credit for its social equity initiatives.

“Some states have been more intentional about trying to do the right thing, whether or not they’ve actually pulled it off,” Rabb told City & State. “Illinois gets credit for doing a lot of stuff around social equity, but if you’re talking about addressing things that have been wrong for 90 years, it’s going to take more than 90 days or a couple of years to get it right.”

In 2019, Illinois Gov. JB Pritzker signed a bill into law legalizing adult-use cannabis in the state that offered automatic expungements for adults arrested for minor cannabis offenses, which are defined as charges for possession or dealing up to 30 grams. 

Under its 2019 legalization law, Illinois has also offered dedicated licenses to “social equity applicants” – individuals who have been directly or indirectly impacted by marijuana convictions. In the Prairie State, social equity applicants are eligible for low-interest forgivable loans that can be used for business expenses, though retail stores in the state have been slow to open, according to a report from MJ Biz Daily.

Nightingale noted that legislation in the state Senate sponsored by Democratic state Sen. Sharif Street and GOP state Sen. Dan Laughlin – Senate Bill 846 – would implement Pennsylvania’s own set of social equity measures, along with legalization for adult recreational use. 

That legislation has yet to receive a committee vote, but it has two major components that seek to address those with convictions looming over them: a “Cannabis Clean Slate” section that outlines a process to expunge nonviolent cannabis offenses, and a “Special and Economic Equity” section that outlines a process similar to the one in Illinois, where people who have been arrested for marijuana crimes – or who have been in an impacted family – would be eligible for grants and loans that they could put toward cannabis-related business ventures. 

But for the Laughlin-Street bill to become law, it would require the support of a divided General Assembly that has struggled to fully complete a state budget, let alone reach a consensus on weed. Rabb said he’s not confident that his colleagues can have the nuanced conversations he believes are necessary to legalize cannabis for recreational use with a focus on social justice.

“Even if we do enact something into law that puts us on the same level as other states surrounding us, it doesn’t necessarily mean we’re going to be at a better place. That's a real concern of mine, because the people who will fall through the cracks are the same people, for generations, through prohibition, who have been caught up in the prison industrial complex and have had the worst outcomes,” Rabb said. “Unless and until we address that head-on through a lens of social equity, I’m not going to be impressed or particularly thrilled about any of this … and I just don’t know if Harrisburg has the collective maturity and intentionality to convene those conversations.” 

In the absence of a legal recreational marketplace in Pennsylvania, Nightingale said lawmakers should consider decriminalizing recreational cannabis statewide to discontinue penalizing people for a practice that’s becoming legal in more places.

“It’s insane to me that people are still being arrested and p..otentially going to jail while it’s legal in 24 states, it’s legal in every surrounding state except for West Virginia, and we don’t have some type of statewide decriminalization,” Nightingale said, noting that decriminalization would result in less business for him as a defense attorney. “I consider it an imperative because people still get busted, still go to jail, still get placed on probation, still have significant collateral consequences to even the simplest of marijuana convictions.”

Back to Special Report: Cannabis in Pennsylvania