Some say Maryland’s mass marijuana pardons don’t go far enough

Maryland Gov. Wes Moore is pardoning 175,000 people who have low-level convictions related to marijuana, the governor announced Monday. To date, it is one of the most expansive absolutions by a state for this type of crime.

“The barriers to everything from employment to education to the ability to buy a home and to be able to start gaining wealth for your family, all of these things are being blocked,” Moore told NPR. “By doing what is the largest state misdemeanor cannabis pardon in the history of this country, essentially what it’s doing is, we want to make second chances actually mean something.”

Twenty four states have legalized the use of recreational marijuana for adults, including Maryland. But legalization doesn’t undo the past, and a lot of people have criminal records from when marijuana was not legal in their state. These convictions have disproportionately affected people of color: Black people are three times more likely than white people to be arrested for marijuana possession despite similar consumption rates.

So with the movement to legalize marijuana, there has also been momentum to forgive those convicted of these low-level crimes. In addition to Maryland, at least eight other state governors and President Biden have pardoned tens of thousands of people for similar crimes.

Yet some criminal justice reform advocates say pardons like these might not be enough to remove the barriers people with criminal records face in things like finding a job or housing.

What does a pardon do — and what doesn’t it do?

Pardons, which are essentially a forgiveness stamp on a past crime, have meaningful benefits for the people receiving them, though just how much largely depends on the jurisdiction and the type of crime. Psychologically, they can provide peace of mind and ease stigma. For immigrants, pardons can lessen the likelihood of being deported.

But in many states, a pardon doesn’t erase a conviction from a person’s record. In Maryland, a pardon will mean that a landlord or employer doing a background check will see that a person was convicted of a crime and what the crime was, but that it’s been forgiven.

There isn’t a lot of research on the effects of having a pardon listed on a person’s record, says Colleen Chien, a professor at the University of California, Berkeley School of Law. But research does show having just an arrest on paper — not even a conviction — can make employers less likely to call a candidate for a job interview.

“A record, whether or not it's been pardoned, whether or not it's been convicted, is often enough,” Chien says. “And so if the governor wants to sort of ensure that this is policy, that there is as much force behind it as possible, he would probably work with the legislature to also try to turn it from a pardon to some sort of shielding, a sealing, or an expungement.”

Though definitions vary, shielding or sealing records usually means hiding them from public view. Expungement generally means the records are removed from places like court and law enforcement databases, so it looks as if the conviction never happened.

Why not just expunge the records?

In short, it’s tricky.

One reason pardons are appealing is that they can be simpler to execute, logistically and politically. They can be done through an executive order, which bypasses a state legislature. In this case, that’s what Moore has opted to do.

Maryland already offers expungement for certain marijuana convictions. Around two dozen other states and Washington, D.C., do as well. But in Maryland, most of these expungements are petition-based: An eligible person has to apply for their records to be cleared. Advocates say that can be a lengthy and confusing process. In Maryland for instance, there are seven videos on the state website explaining the steps.

The Clean Slate Initiative, which advocates for automated record clearing legislation it refers to as “clean slate” laws, estimates that around 300,000 people in Maryland have conviction records, marijuana related or otherwise, eligible for expungement that have not been cleared.

“Pardons and other efforts to reduce the consequences of having a record are important,” Sheena Meade, CEO of the Clean Slate Initiative, told NPR in an email. “However, automatic record clearance for people who meet the requirements is the best way to ensure that a past mistake does not prevent people from having meaningful access to employment, housing, education, and other opportunities.”

At least 12 states have opted to automate their expungement or sealing process, but many have hit snags with technology.

Utah passed a law to automate record clearance in 2019. But in 2023, a year after the law’s implementation, the state had a backlog of 100,000 records that needed to be manually handled, due to mismatched information in older records. Lawmakers there are now considering a three-year pause to catch up.

Pennsylvania passed its law in 2018, the first state to do so. But data from sealed state records still appears on FBI background checks, says Sharon Dietrich, litigation director at Community Legal Services of Philadelphia, who worked closely on the legislation. She says she and other advocates have been told the problem will be resolved in the coming months.

“The Clean Slate model does have limitations. It’s not perfect in 100 percent of cases because if that’s the standard, you can’t meet it,” Dietrich says.

She says the advantages of automation far outweigh these challenges: The burden of clearing the record falls on the state rather than the person affected, and once the process is running, it can be done in bulk, because a computer is doing the work rather than a person.

And, even with the hiccups, she says more than 1 million people have seen some or all of their records cleared in the state.