Criminal conviction restrictions are justified as one way to ensure that the legal marijuana market will not be used to divert drugs out of state, to minors, or to fund criminal enterprises. But using past behavior as a predictor for future actions is an imperfect measure. It is impossible to determine how exactly these restrictions contribute to public safety since they are always coupled with other regulations. We do know, however, that there are other ways to facilitate a functioning legal market using regulations that are not subject to prediction error. Security requirements, marijuana tracking systems, and bookkeeping requirements deter criminal behavior without using an applicant’s past to make assumptions.
In addition to uncertainties that criminal conviction restrictions are the best way to ensure a functioning legal market, it is also important to consider the costs of these restrictions. Criminal conviction restrictions reduce entry into the legal marijuana industry. By excluding drug criminals, conviction restrictions may fundamentally undermine the goals of marijuana legalization by forcing some to stay in the black market. Having a safe legal market is useless if the black market is still the primary supplier of marijuana.
Given the hypocrisy of these criminal conviction regulations, it is not surprising that some states and localities have adopted policies to help those negatively impacted by previous drug policies enter the marijuana industry. Equity programs, however, will only help a chosen few priority applicants. Fundamentally opening up employment opportunities in the marijuana industry by reducing conviction restrictions has the potential to help many people who have been impacted by the drug war.