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You, The Law, and What Trump Means for Weed in America

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Congrats, America! After November’s election, 20 percent of your states have legalized recreational marijuana use. That’s a far cry from a half-decade ago, when that percent was at zero.

It’s been a period of sustained progress for marijuana law reform. That’s meant greater freedom for day-to-day smokers and mainstream respectability for cannabis culture. But what does it mean for people that were convicted under the old laws? And what can the culture expect going forward, both as it relates to policy and the larger zeitgeist?

A (Mostly) Resounding Victory

November 8 marked a big day for marijuana-policy-reform advocates: California, Maine, Massachusetts and Nevada all passed ballot measures legalizing recreational marijuana use (though Arizona voters narrowly defeated an initiative to do so). The passage of California’s Prop. 64 in particular is considered an enormous victory for the legalization effort: The state by itself is equal to the world’s sixth-largest economy. Additionally, California approval means that though marijuana is still illegal under federal law, recreational marijuana use is now legal throughout the entire West Coast.

The four states joined Alaska, Colorado, Oregon and Washington state, which had all previously approved recreational use. A vast majority of other states have either approved medical marijuana use or decriminalized weed, or done both. In fact, the number of states that now have approved recreational use — eight — now outnumber the number of states that prohibit marijuana use of any kind — five. And experts expect that number to grow: Rhode Island, Vermont and Michigan all look poised to legalize marijuana, and Arizona could always give its ballot measure a second chance.

So, it’s never been a better time to be a smoker in the U.S. But what about those who partook before the legalization revolution?

Free Again?

While the progress on the state level means that less people going forward will face charges for acts that were previously deemed criminal, it’s raised the question of what becomes of people that have convicted of marijuana-related offenses. After all, with pot legal in eight states and decriminalized in a handful of others, why should residents of those states previously convicted still face the disadvantages created by having a felony conviction on their record?

Not all legalizing states handle the issue at the outset. Colorado wrestled with this after legalizing recreational pot in 2012; the state didn’t address what to do with prior offenders until the next year, when the General Assembly passed a law that allows people to apply to have their old felony drug convictions changed to Class 1 misdemeanor. A 2014 decision by a state appeals court took that a step further, issuing a ruling that cleared the way for about 10,000 people to have their old marijuana convictions overturned.

Oregon, which officially legalized marijuana on July 1, 2015, didn’t initially address prior convictions, but eventually instituted a program allowing people to apply to have their pot-related felonies sealed or expunged. While making Oregon a leader in expungement laws, the decision still created an often-expensive process that can cost applicants thousands of dollars in court and lawyer fees.

The ballot initiatives passed by the states legalizing marijuana in November 2016 take different approaches to the issue. California, for example, included measures in Prop. 64 that retroactively erased some small-time marijuana-related crimes and reduced the penalties for large ones like growing, selling and transporting. The Golden State has been praised by legal experts and drug-law-reform advocates, who call its approach a model for other states that have legalized marijuana.

However, Massachusetts’ law included no such provision thanks to a the Bay State’s constitution, which dictates that an initiative cannot undo judicial action. After the law’s passage in November, grassroots organizations ramped up efforts to implement expungement programs in the state.

"Expungement is very important,” Shanel Lindsay, one of the authors of the Massachusetts ballot initiative, told WBUR. “And there are a lot of people now that are pushing toward expungement, and I think that we're going to be successful in that effort.”

Who Can Help With Expungement ?

While the Oregon and California laws represent victories for people previously convicted under now-voided rules — allowing thousands of people to gain access to jobs they are barred from with marijuana convictions on their record — the expungement process still presents significant hurdles to clear. People seeking expungement have to navigate a legal process which has already burned them by issuing the prior conviction, and court and lawyer fees can run into the thousands — a not-insignificant expense for people who have had their lives derailed by a pot conviction.

Organizations like PPG Foundation are working to help people through the expungement process. In November, the New York–based nonprofit announced Clean Slate, a criminal-record-expungement program targeted at people with non-violent marijuana offenses.

For applicants’ whose convictions meet the necessary state criteria, Clean Slate provides pro bono expungements on a first-come, first-served basis, as well as through a monthly lottery in which winners are chosen at random.

For the foundation, the case for expungement is simple: Even something as simple as small-time possession conviction — which represents 90 percent of all marijuana-related arrests — can haunt someone for the rest of their life. It may prevent someone from getting a job or asking for a promotion, or it could hurt a student applying to his or her first-choice college or student loans. It could even block someone from obtaining housing or a professional license. Retroactively voiding these sentences will lift the stigma of criminality, PPG says.

“Having this blemish on your record can haunt you for the rest of your life,” the foundation said in November. “Now that legislatures have finally repelled outdated laws and decriminalized small quantities of marijuana possession, we need to help those who have been directly impacted by officially exonerating them from these convictions.”

For the program, which is currently only available in Oregon, PPG has partnered with Green Light Law, a Portland-based firm focused on the marijuana-related legal issues. The foundation is looking to partner with other law firms as Clean Slate expands into other jurisdictions.

What Will Trump Mean for Weed in America?

With his shifting views on marijuana legalization, Donald Trump represents a question mark for the cannabis industry and its proponents — as well as the states that have legalized weed. While it came long before he sought the presidency, the real estate scion once called for the legalization of all drugs in an April 1990 luncheon hosted by the Miami Herald. Since then, his stance has seemingly softened: During the campaign, he said that he supports medical marijuana, but that he has concerns regarding widespread legalization. Ultimately, he later said, the issue should be decided by the states, though he did call aspects of Colorado’s legalization a “real problem.”

Legal experts and marijuana-policy advocates are hopeful that the cost of going after states, the desire to heed to the will of voters who passed ballot initiatives, and the unclear authority the federal government has over the issue will prevent Trump from going after pot. But those fearful of what a Trump presidency could mean for the marijuana industry were further shaken when the president-elect named Alabama Sen. Jeff Sessions as his nominee for attorney general.

Expected to be confirmed by the Republican-controlled Senate, Sessions has some troubling views on drug laws and marijuana itself, openly pining for the days of “Just Say No” and once joking that he thought the Ku Klux Klan was “OK until [he] found out they smoked pot.” Putting aside the (at best) racially insensitive comments, Sessions’ prior pot stances represent a sharp break from his predecessor as attorney general.

In a move that bolstered both the legitimacy of marijuana-legalization efforts and state rights, U.S. Attorney General Eric Holder’s office issued the Cole Memo in 2013. That document stated that while marijuana remains an illegal drug under the federal Controlled Substances Act, the Department of Justice would withhold its right to file suit against states that had legalized pot, allowing them to regulate and implement their own laws.

In an interview with Vice, “Weediquette” host Krishna Andavolu said that while Trump pledged on the campaign trail he wouldn’t interfere with the Cole Memo, Sessions’ DOJ could reverse that stance at anytime. Andavolu also worries that the FBI could take a bigger role in areas like interstate diversion from legal markets, which is currently operated on a county-by-county level.

Wherever the 45th president’s marijuana legacy lands, it’s likely to markedly different than Barack Obama, who told Rolling Stone in an interview in November that he believes marijuana should be treated like cigarettes and alcohol — legal, but regulated.

In an appearance on “Real Time with Bill Maher,” Obama also highlighted the incongruent federal and state laws.

“It is untenable over the long term for the Justice Department or the [Drug Enforcement Administration] to be enforcing a patchwork of laws, where something that’s legal in one state could get you a 20-year prison sentence in another,” Obama said.

A Shifting Culture

And the outgoing president likely has a keen perspective on marijuana: Obama’s eight-year presidency has coincided with unprecedented changes to not only the state laws regulating pot, but also a mainstreaming of cannabis.

Gone are the days of “Cheech and Chong” and “Half-Baked” representing marijuana as a goofy, slacker hobby. Today, cannabis is a $6.7 billion industry that is only poised to grow. It’s a target for PR companies seeking new clients and also a burgeoning real estate driver. While publications like High Times were once confined to the “novelty” or “adult” sections of the book store, the Denver Post has a dedicated “weed editor.” And a new breed of television shows, including “Mary + Jane” and “High Maintenance,” have attracted viewers and critical praise.

Meanwhile, marijuana has been omnipresent in fashion: Cannabis culture now pops up on the runway. For consumer brands, HUF has made millions selling weeds socks for the past decade, while companies such as PPG are creating chic, fashion-forward looks for discerning customers.

It makes sense given the numbers: The amount of people in the country smoking weed has doubled since 2002, rising to 30 million. Recent studies show that even baby boomers are getting high at record rates.

The result is a culture that exists less on the margins, and more as a part of everyday life. Assuming a Sessions-run DOJ doesn’t encroach upon the progress, that can likely only mean further reform, less stigma, and less people dealing with the fallout from non-violent drug offenses.

““The guy running the marathon next to you is also a stoner,” Larry Linietsky, chief operating officer at High Times told The New York Times. “This is happening.”

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