Why Legalizing Cannabis Has Not Yet Stopped the War on Drugs in Washington

The so-called War on Drugs was mostly a war on marijuana. Drug testing has mostly been marijuana testing, and when police arrested people for drug crimes, it was disproportionately black and brown people found in possession of, or selling, small amounts of marijuana which are now available legally in a very competitive retail industry.

Those injustices are well documented, but isn’t it nice to think that is all behind us? After all, voters in Washington legalized cannabis in 2012. What was once a crime is now a lucrative and fast growing industry. The reality, however, is that the harm done by the war on drugs is not over. Thousands of people here in Washington who were arrested and convicted of cannabis “crimes” before cannabis was legalized remain saddled with criminal records. A single marijuana arrest prior to 2012 still disqualifies them from financial aid for college and occupational licenses. Employers and landlords can legally discriminate against them for jobs and housing. They earn less, can do less for their families, pay less in taxes, and are denied the opportunity to meet their full potential in life.

In fairness, Governor Jay Insless and the Legislature have created a legal path for individuals to clear cannabis arrest records but in practice, it is much too convoluted to provide the justice it is meant to deliver. The governor’s Marijuana Justice Initiative acknowledges the injustice of labeling people criminals for what is no longer a crime, but then requires those same individuals to pursue a legal remedy they are unlikely to attain without hiring a lawyer.

Our law firm, which is entirely devoted to the legal cannabis industry in Washington, Oregon, and California, provides pro bono legal services to help individuals expunge cannabis arrest records. It’s the right thing to do, but we are the first to admit it is not nearly enough. There are too many people who need help navigating a process that is unduly complicated. Justice demands the state Legislature expunge these records sua sponte, meaning without requiring individuals to petition the court.

There is precedent for this. In September 2018 the Seattle Municipal Court granted a motion filed by City Attorney Pete Holmes to vacate all convictions and dismiss misdemeanor marijuana possession convictions prosecuted by the city between 1997 and 2010, when it ceased pursuing marijuana cases. “Insomuch as the conduct for which the defendant was convicted is no longer criminal, setting aside the conviction and dismissing the case serves the interests of justice,” the judges wrote. 

What was done in Seattle should be done statewide, and in every state with a legal cannabis industry (and every state should eventually have a legal cannabis industry, but that is a topic for another time). Forcing people convicted of long-ago marijuana crimes to go through a difficult and costly process to clear their records is unconscionable when the legal cannabis industry is thriving.

What we have come to call “the War on Drugs” began when President Richard Nixon signed the Controlled Substances Act of 1970. The stated purpose was to eliminate the scourge of drug addiction and crime, but the real purpose was oppression. The goal was not to drive dangerous drugs from the market but to arrest Nixon’s political enemies, especially of black Americans. We know this is true because John Erlichman, a Nixon henchman who held the title Domestic Policy Advisor said so, publicly, more than 25 years ago.

“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people,” Ehrlichman told Harper’s writer Dan Baum in 1994. “You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

The War on Drugs is generally seen as a complete failure, but it is likely Nixon and Ehrlichman would disagree. Their intent was to make life miserable, especially for minority communities, and that indisputably happened. They are still waging this war. The first, most basic and obvious step we need to take to rectify that injustice is to clear the criminal records of every person who has been convicted of what is no longer a crime. And we must have the political courage to do this without any cost to the victims of the “War of Drugs.”