Road Blocks: Cannabis Conviction Expungement Faces Obstacles

by Bill Weinberg

Nearly 20 states have now approved initiatives or legislation to legalize cannabis, and demands are growing to wipe out past convictions for personal possession. Authorities in some of these states have started to respond—but things are not moving fast enough for advocates of a socially just model of legalization.

A cannabis conviction can follow you around long after you've done your time or paid your fine. Your record may come back to haunt you where you apply for a job or an apartment—even if you live in a state when the "crime" you committed is no longer a crime.

Progress in New York & New Jersey

Both New York and New Jersey are moving apace with post-legalization expungement of cannabis convictions, with more than 750,000 being wiped clean between the two states.

“No one should have records for the same activities that are now legalized, and businesses are generating profits from,” Chris Alexander, director of New York’s newly established Office of Cannabis Management, declared at a Cannabis Control Board meeting last month. “When completed, the actions of these measures will have expunged the records of over 400,000 New Yorkers, a staggering reminder of the impact that cannabis prohibition had on so many.”

In the Empire State, which passed a legalization bill in March, 198,000 cases have already been expunged, with another 203,000 convictions in the process of being wiped out and no longer showing up in background checks.  

In New Jersey, which passed a legalization bill in February, the state Supreme Court has established an automated system that has so far expunged, dismissed, or vacated 362,000 cannabis cases. While details vary from state to state, expungement generally means all case records are destroyed; dismissal means authorities are no longer pursuing a pending case; while vacation means the guilty plea or verdict is retroactively changed, while a legal record of the case remains.   

However, an account on the New York metro-area news site Gothamist notes that loopholes allow some cannabis convictions to remain in place in both states. In New Jersey, for example, if an individual was slapped with a cannabis charge together with a non-drug offense, such as assault, their whole criminal record will remain intact, requiring judicial review on a case-by-case basis. 

In New York, expungement is automatic for cases concerning possession of less than a pound or distribution of fewer than 25 grams (about an ounce). But state residents must apply to have their records wholly wiped out. The New York Courts website explains that even “expunged” records may still be accessed by a law enforcement agency reviewing a job application or local authorities assessing a pistol permit license.

Maryland Next? 

The Maryland legislature last month held hearings on the expungement of cannabis ahead of a pending legalization referendum.

Maryland decriminalized cannabis in 2014. Now, the state’s House Speaker Adrienne Jones, a Baltimore Democrat, has  a panel to study how to implement general legalization in Maryland if voters approve a ballot question planned for November of 2022.

Fortunately, questions of equity, including expungement of possession records, are under discussion from the very start. “We are at the point where we have done everything that we can do technologically, and it’s going to require a manual intervention for anything else that’s required,” Maryland District Court Chief Judge John P. Morrissey told the House Cannabis Referendum & Legalization Workgroup in testimony, Maryland Matters reported Oct. 28.

False Hope in the Golden State? 

Californians voted to legalize cannabis in Proposition 64 of 2016. The initiative’s text says that it “[a]uthorizes resentencing and destruction of records for prior marijuana convictions.” But this pledge of expungement remains unfulfilled in a state once seen as a national leader on cannabis freedom.

Assembly Bill 1793, authored by Democrat Rob Bonta of Alameda (now the state attorney general), was signed into law by then-Gov. Jerry Brown in September 2018 with the aim of, at least, dismissal or “sealing” of records in small cannabis cases. This latter term is another bureaucratic category, which means that the conviction is still on the books. Generally, prospective employers, landlords and so on cannot view sealed records.

But the deadline set by the “Bonta Bill” for California to complete this sealing process was July 2020—and there are still over 100,000 of some 220,000 eligible convictions that are awaiting action.

The hold-up appears to be in the courts of California’s 58 counties, which must review the cases before the state Department of Justice can act. Due to a backlog of cases resulting from the COVID-19 shut-down and a lack of clear instructions to the county courts by the Justice Department, they are nowhere near meeting the deadline—a year and a half after it passed.

Sacramento Bee editorial last month flatly stated: “This is an inexcusable failure by California’s justice system.”

Automatic for the People? 

It was San Francisco that, in January 2018, before the Bonta Bill even passed, became a national leader in automatic expungement. The county’s then-District Attorney George Gascón announced that his office would initiate the sealing and reclassification of thousands of cannabis cases dating back to 1975. In May of that year, Gascón’s office partnered with Code for America, a digital technology nonprofit, which developed a software program, “Clear My Record,” to streamline and accelerate the process. The software reviews thousands of criminal records and identifies those eligible for sealing and submits them to the DA’s office in a matter of seconds.

The Bonta Bill called for replicating this method. However, having to jockey the records of multiple jurisdictions has proved an obstacle to instating automatic expungement statewide. Some bureaucratic idiosyncrasies in California have allowed New York and New Jersey to leap-frog over the Golden State in this matter. 

William Armaline, director of the Human Rights Institute at San José State University, told Filter magazine: “There are aspects of record-keeping in California that made this all incredibly complicated... There is differentiation between records held at DOJ and various forms of records held in the individual counties...”

For instance, the state Justice Department only keeps a record of each individual with a criminal record; the details of the cases in question remain at the county level. And then the counties may have varying record-keeping methods, complicating things further still; Armaline told Filter that “the differences are boringly long and complicated.”

Executive Action for the USA?

In some very encouraging news, Massachusetts Senators Elizabeth Warren and Ed Markey on Nov. 9 sent a joint letter to President Joe Biden, calling on him to use his executive authority to pardon all nonviolent federal cannabis offenders.

In the letter, the two Democratic senators call the country’s war on drugs “failed and racist.”

“America’s cannabis policies have punished Black and Brown communities for too long,” the senators write. They add that despite roughly equal rates of cannabis use, “Black Americans are still nearly four times as likely to be arrested for cannabis possession as white Americans.”

Even if there is little chance that Biden will respond, the fact that voices in Congress are demanding justice is helping erode the lingering stigma and normalize expungement as a concept.

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