What Happens to Your Weed Convictions if New Zealand Makes Weed Legal?

The writing is on the wall—marijuana legalisation is coming to New Zealand.

Labour has promised to hold a referendum on the personal use of recreational cannabis before or with the next election—a part of their confidence and supply agreement with the Greens. What that referendum will actually ask is still unknown, but the intention is there. And with recent Massey University research finding that 76 percent of those surveyed wanted some form of legalisation, reform looks very likely. But what happens to those who are currently in prison or have criminal records when the reason for those records ceases to be a crime?

There is ample opportunity to learn from overseas, even from the country with the highest per-capita imprisonment in the world. Currently, there are nine states in the US where recreational cannabis is legal. Colorado and Washington led the way in 2012, with Alaska, Oregon, Massachusetts, Nevada, Maine, Vermont and California following suit. And, just recently, Canada was the latest legalised-weed domino to fall. These legalisation programmes have all dealt with past-offenders in different ways, and New Zealand would be wise to pay attention.

Colorado was one of the first states in the US to legalise, but its proposed solution does not allow for offences to be wiped, only for them to be downgraded from felony to misdemeanour offences. It also involves a lengthy court process which applicants have to pay for. Simply put, it remains inaccessible to the tens of thousands in Colorado who have cannabis offences on their records.

California, meanwhile, has introduced Proposition 64 in response to this issue. It would allow those with low-level offences to wipe them from their records, and for higher-level offenders to downgrade their offences. Unlike Colorado’s solution, it also allows for some to completely wipe their record of offending. Like the Colorado solution, however, it is expensive, normally requires a lawyer, and is time-consuming. District Attorneys in San Francisco and San Diego have taken it upon themselves to try and find these cases, but this might benefit only around 12,000 people, a far sight removed from the estimated half a million Californians who currently have criminal records relating to weed.

Canada has shown signs of bucking this trend. CBC Canada reported that senior government sources indicated that the Liberal government would announce plans to pardon Canadians convicted of marijuana possession. While people would still need to apply, they wouldn’t need to pay the $600 application fee customarily associated with pardons in Canada. An editorial in Canada’s Globe and Mail details why this doesn't go far enough, focusing on the fact that people would be applying for a pardon, not expungement.

Expungement removes all records from all accessible databases, while a pardon removes merely the record from police databases. This means that the criminal record will still be visible in the case of people renting, applying for a job, or visiting another country.

I spoke to a New Zealander who has criminal convictions for possession and the intent to distribute cannabis. While he never went to jail, he received a sentence of home detention and worries that “next time getting caught might mean jail”. He likes selling and sees a life in it. One day, legalisation-dependent, he wants to open a shop and sell weed. His biggest worry is that his record will prevent him from doing so.

And, as we know, convictions for cannabis have disproportionally harmed Māori communities. If New Zealand doesn’t get legalisation right with regards to expunging criminal records, the community most targeted by the current law won’t benefit from its removal.

New Zealand has an opportunity to legalise in a way that alleviates the harm caused by our long-standing and outdated drug laws. The way to do this is to learn from experiences in the United States and Canada. That means learning from their mistakes. It means expunging all records of cannabis offending.

There is a recent precedent. New Zealand removed homosexuality from the Crimes Act in 1986, but it took until 2017 for the records of those convicted under the previous legislation to be expunged. The mechanism for this, however, still requires people to apply for expungement. People with unjust criminal records deserve more than to have to apply for such records – in this case, a result of homophobic state oppression—to be expunged. They deserve it to be gone, and gone automatically.

When New Zealand legalises, something similar doesn’t have to take 30 years. Prohibition does more harm than good, its application is racist, and we need to do away with it. We should also realise that equitable legalisation should also automatically expunge all weed-related criminal records.