Drug Treatment Courts Should Take Notice of Evolving Views on Marijuana Legalization and Decriminalization

A marijuana leaf. Marijuana decriminalization and legalization is not a new issue. In one way or another, policy makers have been grappling with it since the 1970s. With election politics starting to heat up in the run-up to the 2020 presidential elections, the issue is again being thrust into the spotlight. The vast majority of democratic candidates have taken positions and proposed policies that – to differing degrees – seek to reform the way the US criminal justice system sanctions recreational marijuana use.[1]

One policy that is starting to gain attention is that of automatic expungement for those with prior criminal marijuana possession charges. At the national level, expungement could help to significantly reduce the collateral consequences associated with these relatively minor criminal charges. However, we must consider what such a policy would mean for drug treatment courts. After all, the expungement of criminal charges after the successful completion of a treatment court program is a key motivation for many of the individuals who choose to enter these programs.

According to the 2016 Painting the Current Picture report released by the National Drug Court Institute, 66 percent of rural, 50 percent of suburban, and 65 percent of urban drug courts reported that marijuana was the primary, secondary, or tertiary substance of abuse for their adult participants – second only to alcohol as a drug of choice. In the case of juvenile drug courts, 60 percent of rural, 94 percent of suburban, and 92 percent of urban programs identified marijuana as one of the top three drugs of choice for their participants, surpassing alcohol. With a high prevalence of marijuana use by participants entering drug treatment courts, programs must assess the impact changes in expungement policies may have on their drug court population. Programs should also identify alternative incentives if the lure of expungement is lessened.

However, potential changes in expungement policies are not the only marijuana-related issue treatment courts are tackling. Recreational marijuana is now legal in 10 states (Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington) as well as the District of Columbia. As such, it is becoming increasingly important for treatment court programs to put in place policies to support and help participants with a history of illegal and/or legal marijuana use.

With the high concurrent use of alcohol among the substance use disorder community, many drug treatment courts have already developed policies to regulate participant use of alcohol. These programs recognize that even though alcohol is legal, it can have a negative impact on some participants’ treatment and recovery. In the same vein, it is important for drug treatment courts throughout the country to begin the conversation (if it hasn’t already begun) among their teams about the role, if any, of recreational marijuana use within their programs, if and when their state moves to liberalize its marijuana laws. Likewise, treatment court teams should begin to plan for a future where marijuana use, like alcohol use, is no longer a crime but may still impact an individual’s treatment plan. Further, expungement of a participant’s criminal charges may be less of an incentive for those opting to participate in drug treatment court.

[1] Hutzler, Alexandria. “Legal Weed: Here’s Where Every 2020 Presidential Candidate Stands On Marijuana Reform And Legalization.” Newsweek, April 20, 2019. https://www.newsweek.com/2020-candidates-legal-marijuana-legalization-weed-1401593