Despite the legalization of cannabis for medical and recreational purposes in Nevada, police continue to arrest people for possession as the state’s Board of Pharmacy refuses to reschedule cannabis—but that could soon change with a new ruling.

On September 14, a judge ordered the Nevada Board of Pharmacy to remove cannabis from its list of Schedule 1 substances, after ACLU Nevada filed a lawsuit last April.

“In order for a substance to be classified as a Schedule 1 controlled substance, the Board of Pharmacy has to find that it has no medical value and cannot be safely distributed,” ACLU of Nevada Director of Communications and Campaigns Wes Juhl told High Times. “The Nevada Constitution, however, provides that cannabis has accepted medical uses as a matter of law—the Constitution even lists a number of diagnoses for which marijuana can be used as a treatment.”

According to the Drug Enforcement Administration (DEA), Schedule 1 substances are classified as having “no currently accepted medical use and a high potential for abuse.” Cannabis is classified alongside drugs like heroin or LSD.

Clark County District Judge Joe Hardy ruled that listing cannabis under Schedule 1 is incongruent with the Nevada Constitution, because the Constitution explicitly states that cannabis has medical uses.

ACLU Nevada represents the Cannabis Equity and Inclusion Community (CEIC). The case, CEIC v. Nevada Board of Pharmacy, was filed in Clark County court last April, according to a press release.

“Instead of treating cannabis like alcohol and removing it from the state’s list of controlled substances, Nevada is ignoring its state Constitution and the will of the people,” ACLU Nevada stated at the time.

ACLU Nevada sued the board on behalf of Antoinette Poole, who was convicted of possession of cannabis. Busted in 2017, Poole was charged with a Class E felony.

While the judge ruled in favor of Poole, the debate isn’t over: The judge didn’t rule on whether or not the board has the authority to regulate cannabis, because he asked both sides to submit orders on the issue for review.

“A finding of unconstitutionality of the specific statute underlying a conviction  could be a basis to overturn that conviction through a case where that relief is specifically sought,” Athar Haseebullah, executive director of ACLU Nevada, told the Nevada Current. “Just the same, charges moving forward won’t be permitted to be brought under this amorphous scheduling category where cannabis is listed next to heroin.”

The plaintiffs argued that the Board can’t restrict cannabis, because it isn’t restricted under state law.

“The Board can only schedule a substance under the restrictions placed by the Legislature, if that substance, one, has a high potential for abuse, and then two, either has no medical use or cannot be safely distributed,” ACLU Nevada Legal Director Chris Peterson told the judge.

The Board of Pharmacy’s general counsel Brett Kandt argued the federal status and classification of cannabis as a Schedule 1 substance should apply in Nevada as well.

In several other states that have legalized cannabis, lawmakers have directed the Board of Pharmacy to remove cannabis from Schedule 1 as well.

Meanwhile other efforts to protect people convicted of cannabis-related charges are taking place in the state.

Last month, three nonprofit organizations—the Legal Aid Center of Southern Nevada, Nevada Legal Services, and Code for America—were granted a total of $1.2 million from cannabis tax revenue from the Clark County Commission. Code for America, which received $200,000 of this amount, will investigate how to implement automatic record sealing.

Bay Area-based Code for America in California has several months left to figure out what would be necessary to speed up this process. Some hope that it could bring attention back to Assembly Bill 192, also called the Nevada Second Chance Act, which was passed in 2019.

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Earlier this month, three nonprofit organizations (the Legal Aid Center of Southern Nevada, Nevada Legal Services, and Code for America) were granted a total of $1.2 million from cannabis tax revenue from the Clark County Commission. Code for America, which received $200,000 of this amount, has been tasked with investigating how to implement automatic record sealing in the state of Nevada.

According to The Nevada Independent, Assemblymember Venicia Considine, who is also the Director of Development at Legal Aid of Southern Nevada, explained how these convictions affect people later in life. “There was a woman who couldn’t go see her son graduate on an Air Force base because she had a felony record [for cannabis],” said Considine. “There’s a lot of people that live here in Las Vegas that couldn’t get jobs, simply because they had something on their record from a decade, two decades ago, that was eligible for record sealing, but there was no real way to get it done.”

Record sealing is often a lengthy process, which includes a number of steps, as well as funds, in order to achieve success. The Nevada Independent claims that less than 10% of eligible people who seek out this process actually get their records cleared.

Bay Area-based Code for America has nine months to recount what would be necessary to speed up this process. Many hope that it could bring positive attention back to Assembly Bill 192, also called the Nevada Second Chance Act, which was passed in 2019.

AB-192’s sponsor, former-Assemblymember William McCurdy II (who is now a Clark County Commissioner), explains one of the hangups of the bill. “I wanted [AB-192] to be an automatic seal, but that was impossible, because we currently still have records that are not digitized,” McCurdy said.

AB-192 has led to many useful workshops that have helped Nevadan residents clear their past cannabis convictions, but there are still many more people in need of assistance. “Having a record, especially under the previous laws, you could have had a felony…and have never trafficked or anything,” McCurdy said.

Prior to 2016 when voters legalized medical cannabis, violators of the law received a felony charge after three misdemeanor possession charges of less than one ounce of cannabis (or if they possessed more than one ounce on the first offense). After 2016, possession of more than one ounce is a misdemeanor, and felonies are received for illegal cannabis product selling.

McCurdy mentioned that harsh cannabis laws have caused Black offenders to receive more severe convictions. This is backed up by data collected by the American Civil Liberties Union, which shares that cannabis offenses between 2001-2018 report that Black people were arrested three times the rate of white people, and in some states, up to eight times as often.

“If you were someone [of color], back in the day, that had a drug addiction, and you were found to be in possession of that drug, most of the time you were sentenced with a felony,” McCurdy said. “That was the war on drugs.”

Considine adds that the record sealing process is difficult to manage for people trying to do it for themselves, and it’s a challenge even for legal professionals. “If you served your time and you’re [eligible for record sealing], why are you still paying a penalty for it, especially when people can [use cannabis] now and no one’s getting in trouble for it?” Considine said.

Code for America was instrumental in aiding the state of Utah to clear more than 500,000 records in February 2022. It has also helped out other states such as California and Oklahoma as well. Although the organization has been successful in the past, Code for America’s Associate Program Director Alia Toran-Burrell says that every state is different, and may require a different approach. Ultimately, an updated law can only do so much. “Legislation is needed because there’s no other real mechanism to enforce a state to do this at the state level,” Burrell said.

The process of finding how best to tackle record sealing requires a lot of thought to navigate through a state’s current policy. “I think we’re focused on what is the current landscape?” Burrell said. “What exists in systems? What exists in the policy? And then we’ll work with the state to figure out if it’s even something that they want to move forward with.”

Although Nevada does not allow expungement, a new process targeting record sealing could still help a lot of people who have cannabis convictions on their records receive the freedom they deserve.

“These are folks who have served their time, they’ve done their probation, they have been a model citizen for however long it’s been since their probation ended,” Considine said. “And this is just a way for them to find a better job, move up, become a nurse, go see their kids on a [military] base, go to Canada or … visit other countries or whatever it is that is stopping them.”

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Over two years have passed since the state of Illinois legalized recreational cannabis, and over 15,000 cannabis-related expungements have now been completed. 

Cook County State’s Attorney’s Office (CCSAO) announced on April 20 that it had finalized their goal to complete the Cannabis Expungement Project, an effort that sought to cleanse Illinois residents’ records of any cannabis-related crimes. Leader of this effort, Attorney Kim Foxx, shared on Twitter that on April 22, the office would be presenting an additional 214 cases to be auto-expunged, for a total of 15,191, thus concluding the project.

Foxx also released a statement addressing the importance of working on expungement programs. “Felony charges can affect every aspect of a person’s life, from jobs to housing, long after the debt to society has been paid,” Foxx said. “I am proud that by working with advocates, Code for America, the Chief Judge’s Office, the Cook County Clerk of the Circuit Court, and the Illinois State Police we were able to bring relief for so many individuals so that they, their families, and their communities can move forward.”

There are still a final 588 cannabis-related cases, some of which go back to 1965, that do not have enough data for immediate expungement. In a press release, the CCSAO noted that they are working with the state to examine those cases in closer detail. 

Overall, Foxx added “[T]his is so much more than conviction relief for thousands of individuals. This is about rebuilding trust in the criminal justice system.”

Foxx began exploring what would be necessary to seek out expungement back in April 2019. In June 2019, Governor J. B. Pritzker signed the state’s recreational cannabis law, which also immediately expunged 800,000 residents whose records were marked with small scale cannabis possession. 

In August 2019, Foxx and the CCSAO announced their collaboration with Code for America to begin expungement for any case possession charges up to 30 grams. “It is prosecutors who were part of the War on Drugs, we were part of a larger ecosystem that believed that in the interest of public safety, that these were convictions that were necessary to gain,” Foxx said. “In the benefit of hindsight and looking at the impact of the War on Drugs, it is also prosecutors who have to be at the table to ensure that we are righting the wrongs of the past.”

Foxx filed the first motions for expungement on December 2019 to proactively begin the process through the Cannabis Regulation and Tax Act, which went into effect on January 1, 2020. Shortly after, the pandemic caused court closures that didn’t resume until later in 2020. 

At the time, some local police were not supportive of clearing cannabis convictions from people’s records. Fraternal Order of Police Lodge 7 President Kevin Graham (which back then, managed over 10,000 officers in Chicago) expressed his opposition to freeing people from their past convictions. “Even if the law changes, that does not change the fact that these people knew they were breaking the law, were arrested and convicted once again disregarding the hard work of police officers, who may have been injured while apprehending these offenders,” he said in 2019. 

Graham is no longer in that position as of 2020, when he lost the bid for reelection and was replaced by former President John Catanzara in 2020 (who later resigned in November 2021). Graham was suspended for three years in 2020 after a hidden camera was left in Catanzara’s office.

The Illinois cannabis industry has come a long way, and its success has been seen in sales data that has continually increased over time. In 2021, Illinois cannabis sales doubled in comparison to revenue collected in 2020. An Illinois Department of Financial and Professional Regulation report shared that recreational sales reached $669 million in 2020, and $1,379,088,278 during 2021.

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