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There may be numerous instances of this sort, but I will ask my question based on the instance with which I am most familiar.

Ten years ago, Defendant was arrested and convicted for possession of a small amount of marijuana.

Recently marijuana use was legalized in the defendant's state. If s/he were to use the same amount of marijuana today, it would not be illegal.

Can the prior conviction/criminal record be reversed, expunged, or at least suppressed in at least some states of the United States because it is no longer a crime? If so, what is the mechanism?

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  • I suspect that the answer is, in general, no, unless the state in question has specifically authorized it (which seems unlikely, given the administrative headaches). Are you interested in a particular state?
    – phoog
    Commented Aug 30, 2020 at 1:28
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    On what basis? It was a crime then, they broke the law. Law's aren't typically retroactive for the same reason that something legal X years ago becoming illegal now doesn't mean they can be punished for past digressions.
    – Ron Beyer
    Commented Aug 30, 2020 at 1:28
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    note that while some states legalized the material, the federal statues still make it illegal.
    – Trish
    Commented Aug 30, 2020 at 7:11
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    Not in the US, but the Protection of Freedoms Act 2012 lays out a procedure for men in England and Wales convicted of homosexual acts to apply for a pardon. (The laws against homosexual acts were themselves repealed in 1967.) However, it's important to note that there had to specifically be a law passed to allow for such applications to be made.
    – Michael Seifert
    Commented Aug 30, 2020 at 13:27
  • These might help answer your question: law.stackexchange.com/questions/41464/… law.stackexchange.com/questions/1667/… law.stackexchange.com/questions/24971/…
    – Nate Eldredge
    Commented Aug 30, 2020 at 16:41

3 Answers 3

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This is SB 5605 in Washington, effective July 28, 2019, which allows a person to vacate a misdemeanor conviction for marijuana possession. The process allows a person to withdraw a guilty plea, or has the court vacate a conviction after a not guilty plea, and then the court dismisses the charges. That doesn't create a right for compensation for then penalty imposed, but it does remove any legal disabilities arising from the conviction. It depends on whether that state has such a law: such laws exist in a number of states, and apparently in California it does not even require application.

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Say you have a law change which states that something which was a crime up to Aug 30th 2020 is not a crime from Sep 1st 2020 onward. And a person has been convicted of the crime and served their sentence, or has been convicted of the crime and is serving their sentence, or is in court accused of the crime, or has committed the crime on Aug 30th or before.

It depends on other laws how this situation should be treated. If we are lucky, a country has a general law that states unambiguously how each of these cases should be treated, independent on which of its many criminal laws have changed. (Most countries have a general law for the other direction, that something that was legal now becomes legal - you cannot be convicted for something that was legal when you did it).

You may also be lucky and the law change is combined with laws how old cases should be handled. For example the law could say "X is legal from Sep 1st onwards. No prosecution shall be started from Sep 1st onward for doing X before or from this date. Ongoing prosecution shall continue and convictions shall be upheld. " Or the law might be more generous.

If we are unlucky there is nothing in the law books of some country to handle this. A police officer may decide on their own that they have more important things to do than investigate things that wouldn't be crimes if done today. A prosecutor may decide on his own that prosecuting something that would be legal today is not in the public interest. Different police officers or prosecutors may see things differently.

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No

The mere fact of legalizing something does not make it retroactively legal. Anyone who committed it while it was still a crime is still guilty, having broken the law, and if they were convicted, they still have a criminal record.

It is true that police and prosecutors will seldom avidly purse criminals whose actions are no longer illegal, but that's dependent on their choice. It is also true that often amnesty is extended toward the criminals, with mass pardons removing penalties and criminal records, but that also has to be a positive and separate choice.

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