The Women Fighting for Cannabis Justice and Data Transparency in the U.S. Prison System

No one should be in prison for weed. Truer words, right? The sentiment has been frosted on cakes, featured in countless Instagram tiles, and been the rallying cry of the handful of nonprofits actually trying to do something about it. Cannabis is recreationally legal in 17 states and has become a $61 billion industry. Despite the huge strides made towards legalization, the idealistic messages that inspired the movement have been neglected. The communities most impacted by the War on Drugs still suffer. There are still people locked up for dime-bags. And there are even more people who are unable to receive basic social benefits like food stamps, housing assistance, or federal loans because of a prior drug conviction.

We live in an era where the tiny computers in our pocket can track our every move in the physical and digital world. The amount of data humans create fills department stores stuffed with servers. You might assume that the carceral system is as deeply entrenched in our data-fueled world as we are—it is, after all, a system that's supposed to keep close tabs on the people society has deemed untrustworthy—but you'd be wrong. A simple question points to the massive gap in data about people who are currently incarcerated: How many people are serving time for cannabis right now?

Many people will quote 40,000 as the definitive number of people who are currently incarcerated for cannabis-related convictions. But digging into that number opens a can of worms. That number comes from a 2004 Bureau of Justice Statistics' (BJS) Survey of Prison Inmates. That was the last time data about specific drug convictions was publicly released. There's only been one survey since then, in 2016, and BJS is just now publishing reports on it. Since 2010, BJS has had its budget cut 37%. Massive underfunding means that it takes the Bureau an average of seven years to publish data collected in their Survey of Prison Inmates. As Wendy Sawyer, Research Director at the Prison Policy Initiative, puts it: "You could go digging in a data set that old, but is it still relevant?" On top of their snail's-pace of data publication, BJS only collects data on the controlling offense—the most serious offense that someone has been convicted of. (BJS did not respond to a request for comment.)

During an arrest, police tend to throw as many charges as they can at the person being arrested. Instead of being convicted of one crime, say burglary, most people end up with a complex set of convictions, burglary plus breaking and entering plus cannabis possession. By only recording the controlling offense, carceral institutions make it nearly impossible for researchers to understand the context in which someone was arrested. "It’s hard for us to show how pervasive drug prohibition is in the engine of the carceral system if we don’t have the data," Kassandra Frederique, Executive Director of Drug Policy Alliance (DPA), says. Drugs are frequently used as an excuse to pull someone over, or added to an otherwise unrelated arrest. These complementary convictions can increase the amount of time that someone spends in jail, or the amount they're fined.

Complex convictions effect expungement, too. Expungement is a legal mechanism that allows the record of a criminal conviction to be sealed or erased. 17 states and Washington D.C. now offer some sort of expungement or record-sealing for cannabis-related charges, and every one has a different process for expungement. Some states, like Alabama and Massachusetts, don't offer expungement at all. States like Maryland treat complex convictions as a unit, meaning that in order to expunge one charge, all of them need to be eligible for expungement. Other states, like California, allow for single charges within a unit to be expunged. The process of filing for expungement requires a case-specific effort for each individual. This bespoke approach to expungement means that filing is a time-consuming and intensely confusing process. Not to mention expensive. Which is why Torie Marshall founded National Expungement Week (NEW).

Before NEW, expungement efforts were largely local. By creating a network of organizers, NEW is able to gather and publish data on expungement efforts nationally. They've helped over 2,500 people file for expungement in the last three years. But, Marshall notes, "It's so hard to figure out how to help people getting out of prison without concrete data from the carceral system." Without that information, it's hard to identify and locate people who need help. "We found a way to do outreach by building strong messaging in communities," Marshall says, "We contact friends, family, and loved ones to figure out who's getting out and how we can start the process of record cleaning and record sealing."

Only 6.5% of people who qualify for record clearing apply for it. Many people don't know how to access those services, or can't afford them. Others simply don't trust the justice system to follow through with that opportunity. These hurdles are why organizations like NEW and the DPA are pushing for automatic expungement. That would move the burden of identifying people who qualify to the state, who should be able to easily access the data rather than a patchwork of community connections. So far, six states have enacted automatic expungement for low-level cannabis offenses. Many legislators don't recognize the need for automatic expungement, or for rethinking the carceral system at all.

Lawyer and journalist Amy Bach was writing a book about the routine and undocumented failures of the American criminal justice system when she realized the extent of its data problem. So she decided to do something about it. She founded Measures for Justice in 2011 to arm communities with their own data to solve systemic problems in the criminal justice system. "There's a disconnect between what researchers are interested in and the data prison officials collect,” says Sema Taheri, the Director of Research & Operations at Measures for Justice. "Our goal is to close that gap." Carceral administrators are mostly concerned with tracking the movement of incarcerated people, not their demographics. And even that data is hard to get your hands on.

As Prison Policy Initiative’s Wendy Sawyer illustrates: "In the last couple of weeks a Massachusetts State Senator reached out trying to fight prison and jail expansion in the state. They needed some data about women's incarceration in Massachusetts. It's exactly the kind of thing that should be easily accessible, especially for a state legislator, but they couldn't find it." Without the data to show the current level of women's incarceration in the state, that Senator has a hard time making an argument against building yet another prison.

Because data from BJS is so unreliable, a network of nonprofits has stepped in to fill in the gaps. Some, like Vera Institute for Justice, are large enough to fund massive surveys. Others, like the Prison Policy Initiative, scrounge for data that might be hidden in smaller surveys. This accidental data can show up in surveys conducted about a specific issue, like the Prison Rape Elimination Act. In that case, the survey included questions about formerly incarcerated people's job and housing statuses—information not collected anywhere else.

Collecting all of this data takes a massive amount of effort. It is, after all, something that the federal government should be doing. In lieu of a funding increase for BJS, nonprofits like Recidiviz have launched efforts to build tech tools to collect and organize carceral data. Measures for Justice recently launched a project called Commons. It allows local community members to work with their local police, prosecutors, and courts to hold these agencies and actors accountable by tracking criminal justice data. These hyper-local efforts are vital because of how siloed each carceral institution is. In order to understand the state of the carceral system in our communities, all of their data needs to be aggregated and standardized.

As responsible cannabis companies and consumers seek to end the War on Drugs, these organizations are working to create visibility for the people of color who have long been disproportionately affected by racist policing and imprisonment. "Why should people trust the justice system to follow through on efforts like expungement?" asks DPA's Kassandra Frederique. "They've put people in cages and forgotten about them." Data allows the people fighting for recognition to be seen. It allows researchers and nonprofit organizers to assess the scope of the problem. "We need data to affirm [incarcerated people's experiences]," Frederique says. It is a powerful tool in the effort to repair the damage left by the War on Drugs—we just need more of it.