Mapping Cannabis Social Equity: Understanding How Ohio Compares to Other States

Introduction

On November 7, 2023, Ohio became the 24th state in the nation to legalize marijuana for adult recreational use. Following the lead of other states, the Ohio ballot initiative included social equity provisions designed to address past harm of marijuana criminalization by investing in disproportionately impacted communities and encouraging participation of such groups in the new legal cannabis industry. The purpose of this resource page and associated report is to highlight the varying strategies other states have deployed to fulfill social equity goals and to look at how Ohio’s new laws compare to others. At the bottom of the page, explore additional research and events related to cannabis social equity.

NOTE: The report associated with this page was published in January 2024. This page does not incorporate citations. Download the report to find the full list of sources and references used. 

Cannabis Social Equity Policy

When policymakers and advocates discuss social equity in respect to marijuana legalization, they typically focus on three policy areas: 1) criminal justice reforms encompassing record relief and resentencing, 2) efforts to facilitate participation of underrepresented groups in the marijuana industry by providing technical and financial support or by setting aside a certain number or type of licenses, and 3) investment into disproportionately affected communities. As of 2023, an overwhelming majority of legalization states have enacted some social equity provisions alongside their adult-use marijuana programs. As shown in Table 1, 22 of the 24 legalization states have enacted criminal justice reforms, 20 states have created industry participation assistance programs, and 18 states have either adopted community reinvestment provisions or are in the process of considering them. Not all marijuana-related social equity provisions were enacted as part of initial marijuana legalization reforms, which was especially the case with states that were part of the early wave of legalization. As shown in Table 1 below, many of these early states adopted social equity provisions through subsequent enactments.

In the following sections, we look at each policy area in greater detail, starting with criminal justice reform, followed by community reinvestment and industry participation. In addition to the three policy areas, we also provide detailed information on the criteria selected states have used to determine individual and community eligibility for participating in their social equity programs. We conclude the report with recommendations for greater data collection and analyses concerning the impact of social equity efforts and a more robust assessment of best practices for social equity programs.

Table 1: Overview of all three social equity policy areas by state

Criminal Justice Provisions

Criminal justice reforms enacted by states in response to marijuana legalization can be broadly divided into two types – record relief provisions and resentencing provisions.

Record relief provisions nationwide

States use different terms to describe record relief provisions, with expungement and record sealing being used most frequently, in addition to labels such as "set aside," “vacate," or "erasure." As described in greater detail in a previous report, record relief encompasses a wide variety of provisions that can differ significantly in its scope. Four elements help determine the breadth of available relief: the range of offenses eligible for relief, the extent to which records are removed from government databases, how long one must wait before being able to seal their record, and who has responsibility for initiating sealing or expungement. In respect to the range of offenses, some states, such as Michigan, limit available record relief only to minor offenses, usually classified as misdemeanors, while other states, such as Missouri, allow for the sealing of a broad range of crimes, including felonies as well as misdemeanors. Second, the degree to which records are destroyed after a sealing varies, with some states destroying any record of past marijuana convictions while others only remove records from public view but allow the use for certain purposes, such as determining eligibility for employment in law enforcement or at sentencing for any future offense. Third, states differ in the immediacy with which record relief is available to people with marijuana criminal records, with some states offering immediate relief and others instituting various wait times or limiting relief only to convictions that took place within a specified timeframe. Lastly, the scope of relief is determined by whether the responsibility to initiate proceedings rests with the state, often called an automatic or government-initiated process, or whether it rests with the individual with the criminal record, generally called petition-based relief.

As shown in Table 2, 22 of the 24 legalized states have taken steps to provide record relief for marijuana-related convictions or other low-level convictions that would cover marijuana criminal offenses. Alaska and Maine are the only two states without a record relief mechanism for past convictions. A total of 16 states have implemented some form of government-initiated record relief, whether through provisions within the adult-use program that are marijuana-specific, or via a “clean slate” type of legislation enacted separately from the adult-use program.

Resentencing provisions nationwide

The second category of criminal justice relief involves the authorization of resentencing for those still subject to punishment for marijuana-related offenses. As with record relief, resentencing provisions differ from state to state but generally allow individuals currently serving a marijuana-related sentence an opportunity to have this sentence amended or completely vacated. This type of relief is less common, with only eight states out of 24 adopting resentencing provisions for past marijuana offenses.

Record relief and resentencing in Ohio

The Ohio marijuana legalization initiative passed in November 2023 did not include any direct criminal justice reform provisions. However, it did earmark some marijuana tax revenue to “study and fund judicial and criminal justice reform including bail, parole, sentencing reform, expungement and sealing of records, legal aid, and community policing related to marijuana” as part of the Cannabis social equity and jobs program. Notably, over the past 12 years the Ohio General Assembly has passed numerous record relief reforms that have significantly broadened the type of offenses eligible for sealing to include certain classes of felonies, and that allow for a near complete destruction of records of offenses eligible for sealing by making expungement broadly available with additional wait time. Consequently, the majority of marijuana offenses in Ohio are eligible for both record sealing and expungement. The process remains petition-based, which generally limits its effectiveness due to low utilization among eligible Ohioans, although recent legislation allows prosecutors to initiate record relief petitions on behalf of individuals convicted of minor substance offenses. However, an initial survey of prosecutorial offices across Ohio suggests that only a small number of offices plan to participate in the process to initiate record relief.

At present, Ohio does not have any statutes allowing for resentencing of marijuana offenses.

Table 2: Summary descriptions of record relief and resentencing provisions by state

Download the full report to access Table 3. Government-initiated or petition-based record relief.

Industry Participation Support

The second policy area of marijuana social equity is industry participation support aimed at individuals and communities that have been disproportionately affected by marijuana criminalization or other distinct groups such as veterans. With much of the marijuana industry structured around state licensing requirements, states have typically adopted two approaches to industry participation support: 1) a license assistance program, which can include financial and/or technical assistance provided to applicants that meet requirements for participation, and 2) equity license allocations or preferences.

As shown in Table 4 below, 12 states have enacted statutes requiring a certain number or certain percentage of licenses to be allocated for individuals who are part of a disproportionately affected community or who have met other criteria set by the state regulators. Additionally, 20 states have established programs to provide license assistance, whether through application fee waivers or reductions, programs that provide loans to applicants, or by offering technical assistance. Nineteen states have also enacted language that sets aside funds for providing some form of business education training for equity applicants and their workforce. These programs can come in the form of job training, business marketing, literacy and tutoring programs, apprenticeships, mentoring services, and other programs meant to foster economic growth for equity applicants and the communities impacted by enforcement.

Only four states do not provide any form of industry participation support: Alaska, Maine, Montana and Oregon.

Ohio industry participation support

The newly passed initiative in Ohio calls for the “department of development to establish a business assistance program funded by the cannabis social equity and jobs fund, and to adopt rules … to administer the program including the following:” …

• “(8) Provide financial assistance, loans, grants, and technical assistance to persons certified by the department under the cannabis social equity and jobs program pursuant to rules adopted under this section;”
• “(9) Encourage employment practices, in which an adult-use cannabis operator can demonstrate a plan of action to inform, hire, and educate minorities, women, veterans, and persons with disabilities, engage in fair labor practices, and provide worker protections;”
• “(C) For certified cannabis social equity and job program participants, the division of cannabis control shall waive at least fifty percent of any license or application fees associated with a license holder's application or license.”

Additionally, the initiative also established a “preferred status” for applicants certified as cannabis social equity and jobs program participants for 40 Level III adult-use cultivator licenses (up to 5,000 sqf) and up to 50 adult-use dispensary licenses:

• “(C) The division of cannabis control shall issue up to forty level III adult-use cultivator licenses consistent with this chapter with preference provided to applicants who have been certified as cannabis social equity and jobs program participants under the cannabis social equity and jobs program pursuant to 3780.19 of this chapter. No person may have any ownership or control in more than one level III adult-use cultivator license under this chapter. No adult-use cultivator or adult-use processor may have any ownership or control in a level III adult-use cultivator license.
• (D) The division of cannabis control shall issue up to fifty additional adult-use dispensary licenses in conformity with this chapter with preference provided to applicants who have been certified as cannabis social equity and jobs program participants under the cannabis social equity and jobs program.”

It remains to be seen how, and if, an industry participation support program will be established in the state of Ohio, as revisions have already been proposed in the Ohio General Assembly that would eliminate all industry participation support provisions by rerouting marijuana tax revenue to mostly law enforcement priorities.

Table 4: Industry participation support provisions by state

Community Reinvestment

Among the 24 adult-use marijuana states, 15 states have created community reinvestment programs designed to invest some portion of the marijuana tax revenue into needy communities. The programs encompass efforts aimed at investment in job training and economic development opportunities, jail diversion and violence prevention, or providing funds for reducing unemployment and homelessness among other objectives. Some states direct community reinvestment funds specifically to communities deemed “disproportionately affected” by over-policing during prohibition, while others invest resources more generally into economically depressed areas. In addition to the 15 states with functioning traditional community reinvestment programs, the state of Michigan has established a social equity grant program that is opened to the social equity cannabis licensees, who can then engage in various community reinvestment activities in the jurisdiction where they are located. Two other states, Vermont and New Mexico, have community reinvestment programs in the planning stage, although they have yet to be implemented.

Ohio community reinvestment

As mentioned in the previous section on Ohio industry participation assistance, the recently passed initiative included a provision establishing the cannabis social equity and jobs program. Concerning community reinvestment, the initiative proposed to “(12) Fund direct investment in disproportionately impacted communities to enhance education, entrepreneurism, legal aid, youth development, violence prevention, and the arts related to the program.” Additional tax revenue is allocated for substance use treatment and prevention, which can be seen as a form of community reinvestment if it is invested in communities disproportionately affected by past enforcement. Furthermore, the initiative also designated a portion of the tax revenue to be invested back into communities that have licensees within their jurisdictions.

Similar to proposed reforms to Ohio’s industry participation assistance provisions, revisions have already been proposed in the Ohio General Assembly that would eliminate funding for community reinvestment by rerouting marijuana tax revenue to mostly law enforcement priorities except for substance use treatment and prevention, which continues to be funded under HB 86, albeit at a lower level.

Table 5: Summaries of community reinvestment programs by state

Defining Social Equity Applicants and Disproportionately Impacted Communities

An important aspect of social equity programs, especially concerning community reinvestment and industry participation support, is the criteria states use to determine who is and who is not eligible for participation. The criteria used to determine eligibility for a social equity program usually include a combination of two elements: 1) personal circumstances and 2) a broader conceptualization of a disproportionately affected or deserving community.

Personal circumstances

Personal characteristics or circumstances used by states to identify individuals to participate in the social equity program can be roughly divided into four categories: 1) criminal justice involvement, 2) economic status, 3) residence in a certain geographical area identified by the state, and 4) a broad category of “other.” Criminal justice involvement usually refers to the individual’s personal experience with a marijuana arrest or conviction, or such direct experience by immediate family members. Economic status refers to certain income requirements for the individual or family. In addition, states often recognize current or past residence in a certain geographical area as an additional qualification criterion. Lastly, states sometimes recognize other characteristics as eligibility criteria, such as a veteran status or being a farmer from a rural economically depressed area. As shown in Table 6, states may use a single or a combination of the four factors to identify eligible social equity applicants.

Download the full report to access Table 6: Personal characteristics for qualification as a social equity participant in selected states.

Community characteristics

States use a combination of criteria that assess the level of economic disadvantage and/or measures of law enforcement in a given region for classifying communities as disproportionately affected. While some use the percentage of low-income households, others have used alternative economic indicators such as unemployment, SNAP benefits participation or free school lunches. With respect to criminal justice criteria, state and local governments have used rates of marijuana arrests, general drug arrests, and marijuana convictions to measure whether a community suffered higher levels of enforcement. It should be noted that defining disproportionately affected communities presents significant challenges due to incomplete statewide criminal justice data, lack of sufficient detail in available data, and other issues. Table 7 below presents criteria used by a select group of states to identify communities eligible for social equity programs.

Ohio criteria for identifying social equity participants and disproportionately impacted communities

The passed initiative included a mixture of personal and community characteristics for identifying individuals and communities for participation in the social equity program. Namely, the Department of Development was tasked with establishing criteria based on a requirement that the business owner or owners show both social and economic disadvantage based on the following:

• “(a) Wealth of the business seeking certification as well as the personal wealth of the owner or owners of the business.
• (b) Social disadvantage based on any of the following:
  • (i)The business owner or owners demonstrate membership in a racial minority group or show personal disadvantage due to color, ethnic origin, gender, physical disability, or long-term residence in an area of high unemployment;
  • (ii)The owner or owners, or their spouse, child, or parent, have been arrested for, convicted of, or adjudicated delinquent for a marijuana related offense as determined by rule by the department of development prior to the effective date of this section.
• (c) Economic disadvantage based on economic and business size thresholds and eligibility criteria designed to stimulate economic development through license awards to businesses located in qualified census tracts.”

While the personal characteristics are generally well defined, the statute is rather vague about what criteria will be used to identify “areas of high unemployment.” Additionally, in a section that talks about community reinvestment, the language specifies disproportionately impacted communities without providing any additional information about which measures will be used to categorize disproportionately impacted communities.

Download the full report to access Table 7: Community characteristics for identifying communities eligible for social equity programs in selected states.

Concluding Thoughts

In the last few years, we have seen a gradual shift to a wide acceptance of social equity programs in states that have legalized recreational adult-use marijuana. As shown in Table 1, of the 16 states that have legalized recreational marijuana since 2018, 14 states enacted social equity policies as part of their legalization effort. Only Montana did not adopt any social equity provisions and the state of Vermont adopted social equity provisions post-legalization.

But as social equity policies gained momentum, states have also begun to recognize that implementation of these policies involves an array of complications and is often fraught with legal and procedural difficulties and uncertainties. In this last section of the report, we will briefly discuss a few frequently identified issues.

Criminal justice reform

While not all states that have legalized recreational marijuana have embraced government-initiated record relief, there is a general consensus among advocates that the administrative barriers posed by the petition-based system justify advocating for so-called “automatic” or government-initiated record relief. Unfortunately, there is rarely anything automatic about such efforts. For example, California enacted petition-based marijuana-related expungement in 2016 that authorized “individuals who had completed a sentence for a wide range of marijuana offenses (both felony and misdemeanor) to petition the court to either have the conviction dismissed and sealed, resentenced, and/or redesignated, depending on the offense.” This was amended in 2018 to require government agencies to initiate the sealing of eligible records. Unfortunately, six years later, California has yet to complete the expungement of the estimated 227k eligible records.

The reasons why implementation of government-initiated record sealing is difficult are numerous but generally revolve around the lack of high-quality data stored in siloed databases as well as the lack of resources to process large numbers of records. Additionally, marijuana-specific record relief is also sometimes hampered by the fact that newly passed legalization statutes do not align with old marijuana criminalization statutes. For instance, when Arizona’s voters legalized recreational marijuana in 2020, the resulting statute authorized expungement of “[p]ossessing, consuming, or transporting two and one-half ounces or less of marijuana, of which not more than 12 ½ grams was in the form of marijuana concentrate.” However, because a previous statute classified all possession of marijuana under two pounds as the same offense, court, and police documents generally did not include detailed information about the amount of marijuana found on one’s person at the time of arrest.

Consequently, Arizona prosecutors and courts spent a vast amount of time and resources in accessing and reviewing original case records to determine whether an applicant is eligible for expungement under the new statute, often to no avail.

While adopting marijuana-specific record relief might seem like a commonsense policy, policymakers and advocates need to make sure that the admirable intent of a new statute is not impossible to implement in practice, and that the adoption of automatic sealing provisions does not turn into a broken promise of relief.

Industry participation assistance

Numerous press reports have discussed unfulfilled promises of social equity policies focused on industry participation assistance. These reports highlight problems such as lengthy delays caused by legal challenges to eligibility criteria and the selection process, unusually high cost of entry combined with lack of access to traditional financing due to cannabis’ federal status, unintended consequences of well-meaning but poorly designed regulations, persistent illicit market competition and others. While some programs may have fared better than others in facilitating minority participation in the legal marijuana industry, designing and implementing well-functioning social equity policies aimed at diversifying the cannabis industry has proven consistently challenging.

Given these challenges, states might want to consider whether facilitating cannabis industry participation among communities that have been disproportionately affected by marijuana criminalization is the most efficient and effective means to achieve the goals of social equity policies – namely, enabling those communities most impacted by marijuana prohibition to benefit economically from the creation of a new industry. Given the resource-intensive nature of the cannabis industry and the challenges posed by the uncertainty stemming from the incongruent federal and state legal environments, policymakers should consider whether other policy areas should be given more weight as they are designing social equity programs for their states.

Community reinvestment

Unlike the other two policy areas, not much has been written about the impact of community reinvestment efforts. As shown in Table 6, community reinvestment efforts tend to be broad in their focus, without well-defined end goals or measures of success, which in turn makes assessing their effectiveness difficult. However, the broad nature of some of the statutory language enacted by states also provides an ongoing opportunity to engage with members of the targeted communities to determine local needs and goals and to tailor specific community reinvestment efforts to achieve these objectives most effectively and efficiently. If the primary goal of social equity programs is to uplift struggling communities economically, then investment into things such as job training, minority business loan programs, scholarships, and other areas of need might be a more effective way to reach this objective than only focusing on facilitating cannabis industry participation.

Defining social equity applicants and disproportionately impacted communities

The first step in identifying social equity program participants and disproportionally impacted communities is to select a set of eligibility criteria. While this might seem like a straightforward process, it is a complex problem as policymakers do not want to set the criteria so broad that it includes almost everybody, or so narrow, that the program ends up serving very few. Additionally, policymakers must pay attention not only to what would make the best selection criteria but also whether the selected criteria can be supported by easily accessible, high-quality, and accurate data. As many criminal justice scholars know, the quality and availability of criminal justice data across the United States is abysmal, making any criminal justice criteria fraught with difficulty. When it comes to economic selection criteria, the availability of data on things such as unemployment, school lunches or SNAP benefits is generally better, but it comes with another challenge – choosing the right time for determining eligibility. If lawmakers use present data only, they might be excluding people who have suffered economic hardship historically, but now find themselves living in a recently gentrified area. This all shows that identifying individuals and communities worthy of support through social equity programs can be a difficult and complex challenge.

Need for data collection to allow for a rigorous evaluation of social equity programs

Statewide social equity policies enacted because of marijuana legalization are still very new, with the oldest dating back to the summer of 2018. It is still too soon to conclude that these programs cannot accomplish their goals even as they experienced early difficulties. These difficulties should not be viewed as a reason to give up on social equity policies, but rather as a reason to ensure that as new policies are adopted, and old policies are adjusted, necessary data is being collected to allow for a rigorous evaluation of the program’s effectiveness. This will require a clearer articulation of goals for each of the policy areas, and a purposeful effort to collect data on all aspects of social equity policy. While diversifying the cannabis industry might be deemed a worthy goal, other objectives for community reinvestment and criminal justice reform can and should also be assessed to ensure that tax revenue is being invested responsibly.