New Hampshire Bill Creates Process to Expunge Some Marijuana Charges

By Michael Maharrey

Last week, New Hampshire Gov. Chris Sununu signed a bill to create a process to expunge certain marijuana charges form people’s records. Passage into law would take another step toward nullifying federal marijuana prohibition in effect in the Live Free or Die State.

A bipartisan coalition of seven representatives introduced House Bill 399 (HB399) on Jan 7. Under the law, any person arrested or convicted on or before Sept. 16, 2017, for “knowingly or purposely obtaining, purchasing, transporting, or possessing, actually or constructively, or having under his or her control, 3/4 of an ounce of marijuana or less,” can petition the court to have their arrest record and/or court record annulled.

On Sept. 16, 2017, a law decriminalizing simple marijuana possession went into effect. Passage of HB640 changed possession “of 3/4 ounce or less of marijuana or 5 grams or less of hashish” from a criminal misdemeanor to a civil infraction. HB399 takes another step forward, allowing people arrested for or convicted of something no longer illegal to clear their records.

The House and Senate both passed HB399 on a voice vote. With Gov. Sununu’s signature, the law will go into effect Jan. 1, 2020.

In the past, there has been some opposition to marijuana legalization bills because they generally leave those previously charged and convicted unprotected. The enactment of HB399 demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Once the door is open, the way is cleared for additional steps. You can’t take the second step before you take the first.

Enactment of HB399 not only helps those with prior marijuana arrests and convictions on their record get a new start; it also further undermines federal marijuana prohibition. As marijuana becomes more accepted and more states simply ignore the feds, the federal government is less able to enforce its unconstitutional laws.

EFFECT ON FEDERAL PROHIBITION

Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Decriminalization, along with New Hampshire’s medical marijuana program, removed a layer of laws prohibiting the possession and use of marijuana, but federal prohibition remains in place. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

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Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

HB399 further undermines prohibition, making it that much more difficult for the federal government to enforce it in New Hampshire.

A GROWING MOVEMENT

New Hampshire joins a growing number of states simply ignoring federal prohibition, and nullifying it in practice.

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In 2018, Vermont became the first state to legalize marijuana through a legislative act. and Michigan passed a ballot measure legalizing cannabis for general use.

With 33 states including New Hampshire allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.


Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center, where this article first appeared. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

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