Changing marijuana policy needs to go beyond decriminalization to the expunging of old criminal convictions, according to two key Democratic lawmakers.

House Judiciary Chairman Jerrold Nadler of New York and California Sen. Kamala Harris, a 2020 White House hopeful, have come together on new legislation designed to address both sides of the equation. The legislation is likely to serve as a key marker heading into next year’s elections. 

“Despite the legalization of marijuana in states across the country, those with criminal convictions for marijuana still face second class citizenship. Their vote, access to education, employment, and housing are all negatively impacted,”  Nadler said in a statement. “Racially motivated enforcement of marijuana laws has disproportionally impacted communities of color.”

The bill is expected to be formally unveiled Tuesday, and an advance copy was reviewed by CQ Roll Call.

Among the provisions, individuals who have had income at 250 percent of the poverty line or below for at least half of the decade ahead of enactment could get many cannabis-related convictions expunged and the underlying records sealed at no cost to them.

The language provides that convictions related to the sale to minors would not be stricken from the record, but most other offense would be, including cultivation and possession.

“We need to start regulating marijuana, and expunge marijuana convictions from the records of millions of Americans so they can get on with their lives,” Harris, a former California attorney general, said in a statement.

“As marijuana becomes legal across the country, we must make sure everyone — especially communities of color that have been disproportionately impacted by the War on Drugs — has a real opportunity to participate in this growing industry. I am thrilled to work with Chairman Nadler on this timely and important step toward racial and economic justice.”

Advocates for the legislation point to the outsize effects of the “War on Drugs” on minority populations.

“America’s black and brown communities have paid the heaviest price for this country’s drug war. The Marijuana Opportunity Reinvestment and Expungement Act marks an unprecedented step toward repairing this harm and represents the responsible way to move forward on marijuana policy,” Ed Chung, the Center for American Progress’ vice president of criminal justice reform, said in a statement ahead of the measure’s release. “We look forward to working with Congress to swiftly pass this bill.”

Automatic expungement has become a popular position among Democratic presidential hopefuls. Former Vice President Joe Biden has said he supports such a move, even as he has been a bit of an outlier in saying marijuana decriminalization questions should be left to the states.

“There’s been no long-term studies,” Biden said recently in Las Vegas, according to The Nevada Independent. “I would not curtail the state’s rights to make those decisions, but I would not make that federal decision until those studies are finished.”

The Harris-Nadler legislation would also ensure that people won’t face consequences when it comes to determinations about immigration status for having used cannabis products.

“For purposes of the immigration laws … cannabis may not be considered a controlled substance, and an alien may not be denied any benefit or protection under the immigration laws based on any event, including conduct, a finding, an admission, addiction or abuse, an arrest, a juvenile adjudication, or a conviction, relating to cannabis, regardless of whether the event occurred before, on, or after the effective date of this Act,” the draft legislation reads.

Excise tax

The bill would impose a 5 percent federal sales tax on cannabis products and set up a new federal trust fund with revenue from that tax. The money would be used for implementation, including funding for the Department of Justice and the Small Business Administration.

The legislation would also direct the DOJ to stand up a new cannabis justice office that would oversee services for people with past marijuana-related offenses, including job training and societal reentry programs, youth mentoring efforts, as well as legal aid operations to help enable the expungement of past convictions.

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