By Cedar Weyker*

Minnesota ratified the Eighteenth Amendment to the Constitution, which prohibited “the manufacture, sale, or transportation of intoxicating liquors” within the United States in January of 1919. Minnesota Republican Andrew Volstead was the official sponsor of the National Prohibition Act (“The Volstead Act”), which Congress passed in October of 2019 to implement and enforce the new Eighteenth Amendment.^[1] Both civil and criminal penalties were available to punish violators. However, the Volstead Act contained numerous loopholes. For example, doctors and pharmacists could legally prescribe whiskey as medication for various ailments, including anxiety and influenza.^[2] The government was even allowed to make alcohol when supplies were low.^[3]

Minnesota became a hotbed of spirituous activity during the Prohibition era. From the nationally-coveted “Minnesota 13”,^[4] an illegal moonshine product produced in Stearns County, to St. Paul’s Wabasha Cave Speakeasy,^[5] many Minnesotans flouted the Prohibition restrictions. Vast networks of bootleggers transported alcohol in and out of the state from both national and international sources.^[6] By 1930, the Association Against the Prohibition Amendment estimated that there were at least 50,000 individuals incarcerated for liquor-law violations in the United States.^[7] Contemporary voices complained that the justice system was unprepared for the influx of alcohol-related convictions and that enforcement was ineffective.^[8]

Prohibition ended in 1933 with the passage of the Twenty-first Amendment. But what happened to the individuals incarcerated for alcohol-related crimes when Prohibition was lifted? In most cases, they were forced to remain in jail and finish their sentences.^[9] With luck, prisoners might receive a government pardon, but such mercy was rare.^[10] There is no evidence that there was any process for expunging convictions.^[11]

Legal scholars have long drawn parallels between Prohibition-era criminalization and the war on drugs.^[12] However, although Prohibition lasted only thirteen years, Minnesota’s marijuana criminalization has endured for several decades. In 2021, Minnesota police made 6,055 arrests for marijuana crimes.^[13] But marijuana criminalization must be understood in its racial context. In 2020, the ACLU released a report that found that black Minnesotans were 5.4 times more likely to be arrested for a marijuana-related offense than white Minnesotans, despite similar levels of usage.^[14] Additionally, Minnesota ranked 8th in the country “for largest racial disparities in marijuana possession arrests.”^[15] Racial disparities in drug convictions lead to the continued marginalization of black communities. Even after incarceration ends, marijuana convictions have incredibly detrimental collateral consequences, such as restrictions on government aid, the ability to vote, employment opportunities, and federal financial aid.^[16]

Minnesota decriminalized possession of small amounts of marijuana in 1976, reducing the crime to a petty misdemeanor.^[17] In July of 2022, the Minnesota legislature legalized hemp-derived Delta-9 THC edibles.^[18] Recently, members of the Minnesota DFL pledged to legalize recreational marijuana by the end of 2023.^[19] On January 11, the bill passed the House Commerce Finance and Policy Committee.^[20]

As of early 2023, recreational marijuana use is legal in twenty-one states, Washington D.C., and Guam.^[21] As states begin to legalize recreational marijuana use, a patchwork of conviction relief strategies has emerged, some more equitable than others. States such as California and Colorado allow individuals to expunge marijuana convictions.^[22] Colorado allows individuals to apply for expungement of low-level possession convictions after paying a fee.^[23] California, on the other hand, has an automatic expungement process that requires state agencies to proactively review databases to identify expungeable convictions.^[24] Requesting expungement can be a time-consuming process that may require the expertise of a lawyer.^[25]

Michigan allows individuals to apply to have their records sealed.^[26] However, law enforcement and background-check companies may still view sealed records in some circumstances.^[27] In Washington, the governor grants individual pardons for misdemeanor possession convictions to those who actively request them.^[28] As of November of 2022, only 38 people have received such a pardon despite the fact that an estimated 3,500 people are eligible.^[29]

Retroactive remedies have commenced in the federal arena. In October of 2022, President Biden signed a presidential proclamation that pardoned federal convictions for simple marijuana possession.^[30] Marijuana is still classified as a Schedule I drug, but Congress is currently considering a bill that may change that. The Cannabis Administration and Opportunity Act would remove marijuana from the federal controlled substances list and allow for automatic expungement.^[31] However, the bill does not allow individuals who have received sentence adjustments for an aggravating role (e.g. being the organizer or leader of a criminal activity like drug dealing).^[32] Only time will tell whether this bill will pass into law.

Representative Zach Stephenson authored the bill currently passing through the Minnesota House.^[33] The new law would legalize recreational cannabis use for those over 21 and expunge existing low-level cannabis convictions.^[34] Like California, it calls for automatic expungement of certain non-felonious possession convictions.^[35] However, the proposed legislation would only expunge possession convictions. The bill also calls for the creation of a Cannabis Expungement Board, which would consider resentencing and expunging felony offenses. Again, this is only available to those convicted of certain possession offenses.^[36] In other words, if an individual was convicted of providing or selling marijuana to other individuals, expungement will not be an option under the proposed legislation.

If Minnesota legalizes recreational marijuana, the new legislation should allow for the expungement of non-violent distribution and manufacturing convictions. Society gains nothing by continuing to punish distributors of a legalized substance; “if society endeavors to undo the injustices done by these past convictions, then we must undo all the wrongs or the logic fails and the goal is neither effective nor fully achievable.”^[37] Individuals convicted for receiving or distributing marijuana often have difficulty obtaining employment due to their criminal history, even at newly legalized marijuana dispensaries.^[38] Advocate Katree Saunders explains that “it needs to be written into the laws that people with past cannabis convictions should not be re-penalized when other people are making billions of dollars off of it.”^[39]

In 2021, New Jersey passed the Marijuana Decriminalization Law, a statute that expunged convictions including the “distribution of marijuana less than one ounce.”^[40] There is nothing stopping the Minnesota legislature from adopting a similar provision without the one-ounce limit. If the legislature fears that such a broad, automatic expungement provision for distribution offenses would cause too many complications, they could limit the process in a number of ways. For example, the statute could create a system that automatically notifies individuals convicted of nonviolent distribution offenses that they are eligible to request expungement, free of charge. Once expungement is requested, a reviewing committee could evaluate the request and work with the courts to determine what effect such expungement would have on enhanced sentences.

Deemed the “Great Experiment,” today Prohibition is widely viewed as a failure. Our culture has accepted alcohol and retroactively “romanticizes” the Prohibition era.^[41] Hollywood glamorizes the gangsters of the 20s who defied Prohibition, shrouding them in an air of Robin Hood-esque whimsy.^[42] Society has largely forgotten about the bootleggers left in jail after Prohibition’s end. Minnesota should take steps to avoid repeating this mistake after recreational marijuana is legalized. As the marijuana industry marches forward, legislators should provide retroactive relief to individuals with criminal records for crimes that no longer exist. Failure to do so will only further entrench inequities and racial disparities.

* Articles Editor, University of Minnesota Law School J.D. Candidate, Class of 2023

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^[1] Minnesota Historical Society, The Road to Prohibition, Blog: Collections Up Close (Aug. 29, 2012),  https://www.mnhs.org/blog/collectionsupclose/the-road-to-prohibition.

^[2] Michael Lerner, Unintended Consequences of Prohibition, PBS, https://www.pbs.org/kenburns/prohibition/unintended-consequences.

^[3] Medicinal Alcohol,The Ohio State University https://prohibition.osu.edu/american-prohibition-1920/medicinal-alcohol#:~:text=There%20was%20one%20way%20to,%2D%2Don%20government%20prescription%20forms.

^[4] Jim Walsh, ‘Minnesota 13: From Grain to Glass’ Tells the Secret Bootlegging History of Stearns County, MinnPost (Jan. 27, 2017), https://www.minnpost.com/arts-culture/2017/01/minnesota-13-grain-glass-tells-secret-bootlegging-history-stearns-county/.

^[5] Wabasha Street Caves, Historic Twin Cities (Dec. 10, 2019), http://www.historictwincities.com/2019/12/10/wabasha-street-caves/.

^[6] Mark Wasson, Southeast Minnesota was Hotspot for Bootleggers During Prohibition Era, Post Bulletin (Oct. 12, 2022), https://www.postbulletin.com/news/the-vault/southeast-minnesota-was-hotspot-for-bootleggers-during-prohibition-era; Tom Olsen, Moonshine Poured Across Canadian Border During Prohibition, Overwhelming Authorities in the Northland, Park Rapids Enterprise (Sept. 20, 2021), https://www.parkrapidsenterprise.com/news/the-vault/moonshine-poured-across-canadian-border-during-prohibition-overwhelming-authorities-in-the-northland.

^[7] Association Against the Prohibition Amendment, Prohibition Enforcement: Its Effects on Courts and Prisons 19 (1930), https://digicom.bpl.lib.me.us/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1144&context=books_pubs.

^[8] Id. at 8. (“The whole process is futile and costly.”).

^[9] R. Allyce Bailey, “Serving Time and It’s No Longer a Crime: An Analysis of the Proposed Cannabis Administration and Opportunity Act, Its Potential Effects at the Federal and State Level, and a Guide for Practical Application by Local Government”, 25 UDC/DCSL L. REV. 5 (2022).

^[10] Id.

^[11] Deborah M. Ahrens, Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform, 110 J. Crim. L. & Criminology 379, 411 (2020).

^[12] See e.g. Seth Harp, Globalization of the U.S. Black Market: Prohibition, the War on Drugs, and the Case of Mexico, 85 N.Y.U. L. Rev. 1661 (2010) (“Instead of removing alcohol from the market, Prohibition increased alcohol’s potency and decreased its quality, resulting in a spike in drunkenness and accidental deaths while black market corruption and violence abounded. The same criticisms are often leveled at the War on Drugs.”); Emanuel Margolis, Connecticut’s War on Drugs: A Peace Proposal, 70 Conn. B.J. 372, 373 (1996) (“[T]he United States has been drawn into a ‘war on drugs.’ Not unlike the war on alcohol in the ‘twenties, this war has spawned similar evils – a vast black market, racketeering, violence, and widespread crime.”).

^[13] A.J. Herrington, Black Minnesotans Nearly 5 Times More Likely To Face Marijuana Charges Than White Ones, Forbes (Sept. 9, 2022), https://www.forbes.com/sites/ajherrington/2022/09/09/black-minnesotans-nearly-5-times-more-likely-than-white-ones-to-face-marijuana-charges/?sh=473a1d66606c.

^[14] Black People Five TImes More Likely to Get Arrested for Marijuana in Minnesota, ACLU Minnesota (Apr. 20, 2020), https://www.aclu-mn.org/en/press-releases/black-people-five-times-more-likely-get-arrested-marijuana-minnesota.

^[15] Id.

^[16] Bailey, supra note 9, at 9-10.

^[17] Minnesota Issues Resource Guides: Cannabis (Sept. 2022), https://www.lrl.mn.gov/guides/guides?issue=cannabis#:~:text=intoxicating%20cannabis%20products.-,Many%20states%2C%20including%20Minnesota%2C%20have%20decriminalized%20the%20possession%20of%20small,Minnesota%201976%2C%20chapter%2042).

^[18] Shauneen Miranda, Minnesota Lawmakers Voted to Legalize THC Edibles. Some Did it Accidentally, MPR News (July 2, 2022), https://www.mprnews.org/story/2022/07/02/npr-minnesota-thc-edibles-accident-delta-8.

^[19] Caroline Cummings, Minnesota Democrats Pledge Recreational Marijuana Will Become Legal in 2023, CBS News Minnesota (Jan. 5, 2023), https://www.cbsnews.com/minnesota/news/house-dems-introduce-legalized-recreational-pot-bill-gov-walz-says-hes-ready-to-sign-it-into-law/.

^[20] Kyle Jaeger, Minnesota Lawmakers Approve Marijuana Legalization Bill With Amendments In First House Committee Stop, Marijuana Moment (Jan. 11, 2023), https://www.marijuanamoment.net/minnesota-lawmakers-approve-marijuana-legalization-bill-with-amendments-in-first-house-committee-stop/.

^[21] Claire Hansen, Horus Alas & Elliot Davis Jr., Where Is Marijuana Legal? A Guide to Marijuana Legalization, U.S. News (Dec. 14, 2022), https://www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization.

^[22] Ahren, supra note 11, at 407-408.

^[23] Id.

^[24] Id. at 431.

^[25] Beau Kilmer, Jonathan P. Caulkins, Michelle Kilborn, Michelle Priest & Kristin M. Warren,, Cannabis Legalization and Social Equity: Some Opportunities, Puzzles, and Trade-Offs, 101 B.U. L. Rev. 1003, 1011 (2021).

^[26] Expunge? Seal? States Re-examining Laws that Determine Fate of Conviction Records for Low-Level Marijuana Possession Offenses, The Council of State Governments (Nov. 18, 2022), https://www.csg.org/2022/11/18/expunge-seal-states-re-examining-laws-that-determine-fate-of-conviction-records-for-low-level-marijuana-possession-offenses/.

^[27] Id.

^[28] David Gutman, No Big Changes from Gov. Inslee Following Biden’s Call for Marijuana Pardons, The Seattle Times (Oct. 6, 2022), https://www.seattletimes.com/seattle-news/politics/no-big-changes-from-gov-inslee-following-bidens-call-for-marijuana-pardons/.

^[29] Id.

^[30] Presidential Proclamation on Marijuana Possession, U.S. Dep’t of Justice, Office of the Pardon Attorney (Nov. 2, 2022), https://www.justice.gov/pardon/presidential-proclamation-marijuana-possession#:~:text=On%20October%206%2C%202022%2C%20President,under%20state%20or%20local%20law..

^[31] Bailey, supra note 9, at 15-17.

^[32] Id. at 19-20.

^[33] H.F. 100, 93rd Legislature, 2023-2024 session (Minn. 2023), HF 100: Status in the House for the 93rd Legislature (2023-2024), Office of the Revisor of Statutes, https://www.revisor.mn.gov/bills/text.php?number=HF100&type=bill&version=0&session=ls93&session_year=2023&session_number=0. For a complete list of authors, see https://www.revisor.mn.gov/bills/bill.php?b=house&f=HF100&ssn=0&y=2023.

^[34] Id. at 609A.05.

^[35] Id. at § 609A.01.

^[36] Id. at § 609A.06 subd. 1.

^[37] Bailey, supra note 9, at 21.

^[38] Courtney Vinopal, As More States Legalize Marijuana, People with Drug Convictions Want Their Records Cleared, PBS News Hour (May 5, 2021), https://www.pbs.org/newshour/nation/as-more-states-legalize-marijuana-people-with-drug-convictions-want-their-records-cleared.

^[39] Id.

^[40] Expungement of Certain Marijuana or Hashish Cases, New Jersey Courts, https://www.njcourts.gov/courts/municipal/marijuana-expungement?language=es.

^[41] David Crary, 100 Years Later, Prohibition’s Legacy Remains, PBS News Hour (Jan. 14, 2020), https://www.pbs.org/newshour/arts/100-years-later-prohibitions-legacy-remains.

^[42] William Carroll, A Brief History of Prohibition in the Movies, Little White Lies (Jan. 11, 2017), https://lwlies.com/articles/a-brief-history-of-prohibition-on-screen/.