Even where legal, weed’s hard to remove from criminal records
We’re wrapping up our month of short documentaries with last year’s “The Sentence of Michael Thompson,” about Michigan’s longest-serving nonviolent offender. It’s available to stream for free on Vimeo via Short of the Week.
Thompson sold 3 pounds of marijuana to a confidential informant in 1994 and was sentenced to 42 to 60 years in prison. The 25-minute doc follows the efforts of Thompson’s family and lawyer to free him after Michigan legalized the drug in 2018. Gov. Gretchen Whitmer commuted his sentence in January 2021, but many more Michael Thompsons are out there.
Marijuana is now a multibillion-dollar industry, legal for recreational use in 22 states with more on the cusp. Dozens of states have passed laws to pardon or expunge the records of millions of pot offenders, who are disproportionately people of color. (You can see the racial disparity in your state here. ) President Joe Biden announced sweeping pardons for some federal marijuana convictions last year. But these efforts are slow, complex and don’t always help the people you might expect.
To get some clarity, we spoke with Jana Hrdinová and Douglas Berman, the administrative and executive director, respectively, of Ohio State University’s Drug Enforcement and Policy Center. An edited transcript of the conversation follows.
How much did you know about Michael Thompson going into the documentary? What stuck out to you about his case?
Douglas Berman: I was familiar with his case as part of a broader set of conversations around persons who got particularly long sentences for cannabis offenses. Michael Thompson’s case is a good example, where the lawyer in me says, while he technically didn’t get 40 to 60 years for marijuana dealing — that was capped at 15 years — it was the guns [in his home]. And on top of that, he had a criminal history that made him a habitual offender. [When] somebody gets an extreme term for marijuana involvement, there’s gotta be more to the story. There usually is. The “more to the story” isn’t necessarily something that justifies a long sentence.
Jana Hrdinová: When you look at states that have passed marijuana legalization, they have some kind of — not clemency per se, but record sealing or expungement. Those are usually aimed at very low-level offenses. People like Michael would most likely not fall into the category of somebody who would be eligible for a straight-up record sealing, or expungement of the record, even in places where you have allowance for resentencing. The pardon aspect of it is different because the governor has more leeway in terms of whom he pardons, and I think some governors are more inclined than others to take marijuana into consideration.
When I read about President Biden’s recent pardons of people with federal marijuana possession convictions, I was struck by just how specific and narrowly defined that group is. Very few people are being released. It surprised me to learn just how difficult it is to pardon people convicted of simple possession or to expunge records at scale.
Berman: Every single state has some kind of expungement or record sealing or other record relief mechanism. [But] the only way for persons in the federal system to get any kind of relief is through clemency, through pardons. It’s a big gap and a problematic gap in federal law that doesn’t get talked about as much. But then Jana can tell you how, even when you have law on the books — and we’ve had lots of changes in Ohio — the application of those laws is just incredibly fraught.
Hrdinová: Yeah. So I don’t know if you know the difference between petition-based and government-initiated expungement and record sealing. Petition-based basically puts the onus on the offender to actually file an application with the courts to get their record sealed. Even when a state like Ohio has an incredibly broad eligibility criteria, not many people know about it. And if they know about it, they don’t know how to file the forms, they don’t know where to go, they don’t have the 50 bucks that they need to file, in terms of a fee.
But even when you have a government-initiated system, you can run into problems. In most states, data is not stored in a centralized way. In Ohio, for instance, we have a nonunified court system. Every court has their own database, they don’t talk to each other. It’s just a huge mess.
And then, of course, it’s the resources. It takes a tremendous amount of resources, both on the prosecutors and the courts, to process all these government-initiated petitions. And then if you do manage to seal people’s records, how do you let them know that their records are sealed and they no longer have to disclose them on their job applications? We literally don’t know where people who were convicted 10 years ago are living now. And how are you going to let them know? Facebook? Probably not. But none of that means we shouldn’t try. It’s just difficult to do so.
Bills to legalize marijuana are often touted for their potential enormous tax revenue. Would some portion of that money help with restorative justice? Would it be enough to address some of these barriers?
Berman: This can be costly, but my sense is it pays dividends down the line. I would just sort of suggest, urge states to be prepared to put the investment in on the front end. Because at the end of the day, that’s gonna allow individuals to be more successful, earn more money, stay off welfare rolls. It’s a lifetime of dividends that’s going to be paid back to the state to make it easier for people to be law-abiding and to avoid getting into trouble. And it really isn’t that much of an investment on the front end.
Hrdinová: Our criminal justice data is just so awful when you compare it to labor data or other statistics that governments produce on daily basis. So, investment in data systems is always a good idea. And then in states where it is government-initiated, it can just be a five-year or 10-year period where a portion of the tax revenue is invested in record sealing, because after that, you no longer generate new records. So this is not going to be an ongoing expense.
We talked earlier about the broad discretion the president and governors have to provide relief in cases like Michael Thompson’s. But how many people are going to have a tear-jerking documentary made about them? Shouldn’t there be a better way?
Berman: My simple take is, we’re a massive country with massive criminal justice systems. And there are going to be mistakes at the extreme in every direction, right? How do we build in the infrastructure to keep checking and double-checking? To me, the part that’s so worrisome is it shouldn’t have to be the governor, right? I mean, great, the governor grants clemency here, but the governor’s got lots of things to do. And if that’s the only mechanism to provide relief, it’s going to take a documentary and all sorts of work to get the attention to say this is that case that deserves that. And by the way, the governor is subject to a set of political and social pressures that may make them poorly situated [to make that decision].
Hrdinová: I guess I see the system as, I don’t want to say, inherently unfair. But the truth of the matter is, if you have family members, if you have a celebrity behind you, your case has a much better chance to get relief than if you don’t. I think that’s just, you know, that’s just the reality of life, I guess. But that doesn’t strike me as a fair way to do this.
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