Who Sees a Drug Conviction on Your Record

February 24th 2016

Lucy Tiven

Even though the stigma of marijuana use is eroding, in many U.S. states, a misdemeanor drug conviction can be just as damaging as a felony when it comes to future employment, housing and student loans.

ATTN: spoke to criminal defense lawyer Stefan Borst-Censullo to get to the bottom of how far a drug charge actually follows you, and why these convictions have such lasting effects.

In most states, employers can discriminate against you on the basis of a single drug misdemeanor.

"For the most part still, when somebody is convicted of using or transporting drugs, the biggest problem they're going to be facing over time is constantly having to report that on every single job application that they're ever going to have," Borst-Censullo told ATTN:.

Advocacy groups like the Ban The Box campaign have called for public and private employers and public housing offices to remove questions about criminal convictions from applications. Washington D.C. made it illegal for employers to require prospective employees to disclose past convictions in 2014. Hawaii, California, Colorado, New Mexico, Minnesota, Massachusetts, and Connecticut, as well as 45 cities and counties have removed questions on conviction history from employment applications, according to Ban the Box.

"More than likely [a drug conviction] has no bearing on their present abilities to be a decent employee, nor does it have anything to do with their job responsibilities," Borst-Censullo said. "We expect full employment in our economic system, but our policies are actively encouraging people to be automatically disqualified."

Drug convictions can also lead to licensing being stripped or delayed in medical and legal professions, and even legal marijuana use can be grounds for termination.

"A lawyer who is trying to become a barred member of their particular state is almost definitely going to have to disclose a drug conviction, and that drug conviction is going to put them in the same category as someone who is convicted of fraud or a violent crime," he explained, "their livelihood is put on hold because of what some people view as a mistake from years ago."


If an employee doesn't disclose a charge or lies about their record, it can be used as cause for dismissing class action and wrongful termination lawsuits that turn up later, according to Borst-Censullo. Legal medical and recreational marijuana use can also be used against an employee in certain states, and is not considered wrongful termination.

In 2015, the Colorado Supreme Court ruled that companies can fire employees for marijuana use outside of work, when plaintiff Brandon Coats sued Dish Network for firing him in 2010 for having THC present in his system.

Even though marijuana is legal both medically and recreationally in the state, it is still classified as an "illegal substance" due to federal laws, so the court ruled that he was not protected under Colorado's "lawful activities statute." Coats, who is quadriplegic, said he used marijuana medically and was not impaired at work. His lawyer told the Huffington Post "he was [a top performer] in his evaluations."

The Everlasting Nature of Drug Charges Is Shaped By Economic Inequality and Systemic Racism.

While a 2013 study found that drug use didn't differ significantly between Black Americans and their white counterparts, drug convictions disproportionately target low income individuals and minorities. However, Borst-Censullo said that inquiring into the drug histories of poor people and minorities has been used to prevent them from receiving economic benefits.

Race Job Callbacks

"We target poor people with drug convictions and we use that as an excuse, as a way to keep them out of welfare and keep them from participating in the rest of society," Borst-Censullo explained.

As Slate observed, misdemeanor arrests translate disproportionately into criminal charges, essentially transferring the responsibility of prosecutors and district attorneys to the local police who make arrests.

"Studies in Iowa, New York, and North Carolina reveal that prosecutors declined only 3 or 4 percent of petty offenses. In jurisdictions like these, 96 percent of arrests convert automatically into criminal charges."

Reporter Alexandra Natapoff concluded:

"This dynamic represents a breakdown in basic principles of justice. First, arrests are permitted to convert directly into criminal convictions without scrutiny of the facts by prosecutors or defense attorneys. Police are not supposed to decide who gets convicted. That’s what trials and plea bargaining are for."

Economic inequality also factors into how convictions affect access to education and student loans. This February, Senators Bob Casey (D-PA), Orrin Hatch (R-UT) and Sheldon Whitehouse (D-RI) introduced a bill to ban questions about drug convictions from federal student loan applications.


A Drug Conviction Can Limit Your Housing and Immigration Status.

Outside of the job market, drug convictions can make you ineligible for housing assistance, food stamps, and other opportunities.

Food Stamp"The repercussions of a petty conviction can be anything but minor," Slate reported:

"A conviction of any kind can ruin a person’s job prospects. A petty conviction can affect eligibility for professional licenses, child custody, food stamps, student loans, and health care or lead to deportation. In many cities, a misdemeanor makes you ineligible for public housing."

"During the height of the drug hysteria, we made the ability for someone to receive section 8 housing conditional on whether they had a drug conviction," Borst-Censullo said. "So where are they going to go? The answer to that was 'prison,' for a lot of people."

A drug conviction can also be grounds for deportation in California, even though medical Marijuana is legal and older drug charges aren't accessible to prospective employers in the Golden State.

"If you get a drug conviction [in California], you are deportable," he said. Even for permanent residents, a drug conviction hugely jeopardizes your immigration status.

In states where marijuana is legalized, it's also possible for those who work legally in the cannabis industry to pick up felony charges for transporting marijuana to a dispensary after its license has been revoked.

Some laws are changing, but not for the right reason.

In California, employers can only ask about marijuana convictions in the past two years and other drug misdemeanors in the past seven.

Weed Gavel

But this is less indicative of a progressive cultural shift than it is a response to how spikes in drug convictions have narrowed the labor pool.

"California was a big leader in this, not necessarily because of any warmings of the heart," Borst-Censullo said. "The major drug freak-outs of the 80s and the 90s have made it so we've artificially deflated the labor pool."

No Second Acts?

For many people, the fact that a small drug possession charge may follow you indefinitely is contradictory to the notion that people who have committed crimes can and should be rehabilitated and provided with legitimate second chances.

Prison Cell

"A criminal conviction allows you to be treated as a second class citizen for a very long time," Borst-Censullo told ATTN:. "We're also accepting the idea that someone who makes a mistake in any sort of criminal matter should be liable for that for years on end."

Though certain drug charges can technically be expunged, the process is expensive, difficult and time consuming. For the most part, the dramatic notion that a possession charge for a small quantity of recreational drugs can follow you forever isn't totally off base.

"We've created this dishonor that's going to haunt somebody for the rest of their life," Borst-Censullo said, "for no particularly good reason."