Criminal Records Expungement and the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019

Criminal Records Expungement and the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019

INSIGHTi
Criminal Records Expungement and the
Marijuana Opportunity Reinvestment and
Expungement (MORE) Act of 2019
September 18, 2020
The Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 (H.R. 3884; S. 2227)
would expunge the criminal records of convictions for qualifying federal marijuana offenses and al
related arrests for individuals no longer serving a criminal justice sentence. Most of these offenses fal
under the Controlled Substances Act, but Section 2 of both the House and Senate bil s references other
federal marijuana offenses in Title 16 and Title 18 of the U.S. Code. The bil s would require each federal
district court, within one year of enactment of the bil , to issue an order expunging records of convictions
or adjudications for juvenile delinquency and related arrests for federal marijuana offenses entered into,
on, or after May 1, 1971, up until the day the bil is enacted. Also, the bil s would al ow anyone w ho has
been convicted or adjudicated delinquent for a marijuana offense and is not currently serving a sentence
to petition the court for expungement, which would al ow for convictions and associated arrests to be
expunged before the end of the one-year review period. Expunged records would be sealed and removed
from “each official index or public record,” though the record could be made available pursuant to a court
order.
The MORE Act would al ow those currently serving a sentence for a federal marijuana offense to petition
a court for resentencing as if the penalty for their marijuana offense was not in effect at the time of their
initial sentencing. At the time of resentencing, the court would be required to expunge the records related
to the marijuana conviction and any related arrests.
Federal Marijuana Offenders
There is no official estimate of how many people might be eligible to have their criminal history records
related to federal marijuana offenses expunged if the MORE Act were to become law (i.e., how many
people have ever been convicted for a federal marijuana offense). However, some data provide a sense of
how many people are arrested and how many are convicted for federal marijuana offenses each year.
 As part of its Domestic Cannabis Eradication/Suppression Program (DCE/SP) that
exclusively targets drug trafficking organizations involved in marijuana cultivation, the
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Drug Enforcement Administration (DEA) arrested 4,718 individuals for marijuana
offenses in 2019—this was down from 5,632 arrests in 2018. Of note, the DEA general y
does not arrest for simple possession of marijuana.
 Data from the U.S. Sentencing Commission (USSC) show that 1,675 (8.5%) of al federal
drug trafficking cases (19,765) involving offenders sentenced in FY2019 under U.S.
Sentencing Guidelines, Chapter 2, Part D, involved marijuana as the primary drug type.
The USSC also noted that the number of marijuana trafficking offenders sentenced under
Chapter 2, Part D decreased by 51.6% from FY2015 to FY2019.
 Data from the Federal Bureau of Investigation’s (FBI’s) Uniform Crime Reporting
Program (UCR) show that there were over 1.6 mil ion arrests for drug abuse violations in
2018, of which 37% were for marijuana possession and 3% were for sel ing or
manufacturing marijuana. However, UCR data largely reflect arrests made by state and
local law enforcement agencies.
Potential Issues Related to Expungement
The expungement provision in the MORE Act could raise several issues for policymakers. The legislation
would only address expungement of criminal records related to federal marijuana offenses; it would not
provide relief from convictions for marijuana offenses in state courts. A report from the Collateral
Consequences Resource Center (CCRC) notes that state laws vary as to when criminal records can be
expunged, but 18 states and the District of Columbia have enacted relief laws specifical y related to
marijuana offenses. However, the types of offenses for which records can be expunged and the process for
seeking relief varies in the states that have enacted these laws. An issue policymakers might consider is
whether Congress should provide an incentive for states to adopt uniform laws regarding the
expungement of convictions for state level marijuana offenses. For example, Congress may place
conditions on federal criminal justice funding, such as the Edward Byrne Memorial Justice Assistance
Grant (JAG) program, or provide funds to states to help them implement expungement programs.
Congress may consider providing guidelines to states on how to structure their expungement programs.
While the MORE Act would require courts to expunge arrest records associated with a conviction for a
marijuana offense, it would not provide for the sealing of criminal records for marijuana-related arrests
that did not lead to a conviction. The FBI has a process through which people can obtain a copy of their
criminal history record and chal enge inaccurate or incomplete information (e.g., the arrest record does
not reflect that the charges were dropped or the person was not convicted). However, under this process it
is the responsibility of the person to ensure his or her record is correct, and research suggests that about
half of arrests might not have associated disposition data. If arrest records resulting in a conviction are
expunged, it might raise a question about whether non-conviction arrests should be handled in the same
manner.
Final y, while the MORE Act would require expunged records to be removed from “each official index or
public record,” CCRC notes that criminal records are also maintained in privately owned databases,
which consist of records assembled by private companies from public sources, such as court records.
Individuals or businesses who want to do a background check, for instance, can access the information in
these private databases for a fee. Private background check companies are subject to federal regulation
under the Fair Credit Reporting Act, which requires consumer reporting agencies to “assure maximum
possible accuracy of the information concerning the individual referenced in the report.” However, CCRC
reports that many private companies continue to report expunged criminal records because they claim
they did not know that the record was expunged. Policymakers might consider whether federal courts
should be required to send lists of criminal records that would be expunged under the MORE Act to
private background check companies in their respective districts to notify them of the expungement.

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Author Information

Nathan James
Lisa N. Sacco
Analyst in Crime Policy
Analyst in Illicit Drugs and Crime Policy

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