Jason wonders, "I'm curious about how the law affects those that have a criminal record on account of a marijuana arrest/charge from before legalization. Can those people expunge their record? Is there any process for them to correct their criminal record now that marijuana is legal?"
When it comes to our discussions of cannabis laws in Alaska, there are precious few solid answers. Fortunately for everyone, this is one of them. Unfortunately for some, that answer is no, there's no process to remove a cannabis criminal charge from one's record. Ballot Measure 2 didn't create any new statutes providing for one, either.
Alaska Department of Law Criminal Division Director John Skidmore acknowledged in an email that Alaska law doesn't provide a way for anyone to seek removal of a criminal charge from their record, regardless of what it might be.
"The only way to remove a crime from one's record is by a pardon. Only the governor can grant a pardon," Skidmore wrote.
Read more Highly Informed: Seeking answers to Alaska's cannabis questions
And in case anyone's wondering whether anything has changed for people currently serving some sentence or facing a penalty for a cannabis conviction, the answer is no, their sentence hasn't been changed by legalization.
Skidmore said, "Just because an act is legal now does not mean it was OK to violate the law in the past."
His statement doesn't propose a novel interpretation. After alcohol prohibition was repealed, for instance, previous convictions weren't automatically overturned. Same thing with other laws that may have been repealed, deemed unconstitutional or may seem outmoded today.
And nothing outside the ballot measure has changed on those fronts either. The omnibus cannabis crime bill that did not pass last session does not include a provision that would have overturned cannabis convictions or provided for a pathway for people to remove convictions or arrests from their records. Staffers I spoke to last session said they did not know of any proposals to that effect when it comes to cannabis.
Legislation does appear from time to time proposing a pathway to expungement for various crimes, and debate sprang up over the way Alaska reports law enforcement information in the CourtView system, but cannabis hasn't been singled out in any of those efforts, to my knowledge.
The ballot measure to legalize cannabis in 2000 contained provisions to erase certain cannabis-related charges on people's records, overturn convictions, return confiscated property, and would have opened the door to damage claims against the state. That measure failed by a wide margin.
Whether those provisions caused that measure's defeat by turning off voters who were only a little sympathetic to legalization would be hard to say, this far removed from the situation. But no doubt it played a role in voters' decisions, and post-election reports included the measure's organizers expressing second thoughts about those sections in hindsight. Subsequent ballot measures to legalize, including the one that passed in 2014, did not contain similar provisions.
If there were a pathway available to people to remove cannabis from their criminal records, it could also affect the implementation of the cannabis industry currently taking shape. The regulations are in draft status now and not complete, but as we discussed recently, provisions exist that would bar people with a felony charge in the past five years from being owners or agents of a licensed and regulated cannabis-related business. If a framework for expungement were to proceed, those codes would become effectively meaningless. It's also conceivable that situations could arise in which some cannabis business license applicants were being rejected and others with the same kind of criminal records accepted.
Without a path for ridding records of cannabis-related charges, the best people will be able to do is consider those charges as badges signifying how much things have changed. People whose records contain a cannabis felony may find that small solace. But that's understandable because so much more is at stake for them than for misdemeanor offenders.
Setting cannabis matters aside, there may be a bigger issue hidden in Jason's question, a conversation for a different time and place. Everyone knows that people shouldn't do the crime without being willing to face the consequences, but should Alaska allow people a pathway to fully put a criminal past behind themselves and rejoin society?
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