Legal experts worry the cannabis expungement proposals currently being considered might cause more harm than good.
By Rebecca Rivas, Missouri Independent
The push to legalize recreational marijuana use in Missouri is coming from multiple directions, with a handful of proposed initiative petitions and at least one bill, and potentially more, backed by Republican lawmakers.
Each hopes to place the issue on the 2022 ballot for voter approval.
And each proposal also includes a provision that, while often overlooked in the marijuana debate, is considered a transformative piece of the legalization puzzle—the expungement of nonviolent marijuana offenses from criminal records.
The proposals differ on how they handle expungement.
Some propose an “automatic” system that would have the courts identify the old offenses and seal them on people’s records. Others would require people to submit a petition and pay a fee.
How to go about expungement remains up for debate. But the necessity of its inclusion appears a settled matter.
“Every conversation should start with criminal expungement and how the war on drugs has been part of the extension of systemic racism,” said Brennan England, state director of Minorities for Medical Marijuana, an advocacy group for minority businesses.
However, legal experts who work directly with people in law clinics worry that the expungement proposals that are currently being considered in both the initiative petitions and legislation might cause more harm than good. Especially since each seeks to amend the Missouri Constitution.
“My concern is we put something in the Constitution of the State of Missouri that has this level of minutiae, some of which may not be possible,” said Ellen Suni, dean of the University of Missouri-Kansas City (UMKC) School of Law and director the law school’s expungement clinic.
The Legal Missouri ballot initiative, which has the financial backing from many of the state’s largest medical marijuana license holders, proposes a process for Missourians with nonviolent marijuana-related offenses to automatically expunge their criminal records. It has the backing of advocacy groups such as the NAACP and Empower Missouri, who see this as an opportunity to lay seeds for expungement reform beyond marijuana offenses.
“It’s a very small stepping stone on a path to a much larger piece of legislation,” said Mallory Rusch, executive director of Empower Missouri.
Rusch, along with many others throughout the state, regards Suni and her UMKC team as leaders in the conversation for expungement reform. Suni believes the process should be as accessible as possible for people who have paid their dues to the criminal justice system.
However, the Legal Missouri proposal would etch timelines and specific expungement process details into the constitution that might not necessarily take into account the complexity of Missouri’s existing law and lack of digitized criminal records, Suni told the Independent. If the expungement program fails, then it would not only require a constitutional change but it “could be problematic down the road” for other attempts at automatic expungement.
“Then the next time somebody mentions automated expungement, it’s ‘been there, done that. It doesn’t work,’” she said.
Legalization proposals on the table
There are three initiative petitions hoping to collect enough signatures to get on the November ballot and legalize recreational use of marijuana: Legal Missouri, Fair Access Missouri and Cannabis Patient Network.
Legal Missouri would set up a timeline for when courts have to expunge records depending on the class of offenses, where misdemeanor offenses would be adjudicated first. The courts would have one year to order the expungements of people who are not in jail or on parole or probation.
The fees and tax revenues from the marijuana program would go towards paying for expungements, said John Payne, campaign manager for Legal MO.
“So it’s not an unfunded mandate, which is something that I think was a big concern,” Payne said. “It is a concern that I would see on some of these other proposals.”
However, people currently in jail for possession of marijuana would have to petition for their release, and those who are incarcerated for possessing more than three pounds would have to serve out their entire sentence.
Fair Access is the only proposal where people would have to file a petition for the charges to be dropped, which would also come with a $100 fee. Eric McSwain, campaign manager for Fair Access, said during a virtual town hall and debate on January 20 that the petition allows people to file “when they need it.”
“Automatic expungements are notable for taking a long time to implement,” McSwain said. “And in the case of Legal Missouri 2022, they’re actually going to have to wait for tax revenues to start to be generated in order for those automatic expungements to begin to take place.”
The measures by the Cannabis Patient Network and Dogan both state that within 60 days of passage, Missouri’s courts must order the immediate expungement of civil and criminal records pertaining to all nonviolent, marijuana-only offenses.
They also state that anyone incarcerated for nonviolent, marijuana-only offenses shall be immediately released, and those on parole or probation shall be released from that supervision.
A ‘meaningful’ process
No matter which proposal makes it through, the biggest question is: Will it be efficient?
“Coming up with ways to make expungement meaningful to actually achieve the legislative objectives that were put forward when expungement laws were passed is really kind of the key step,” said Staci Pratt, director of public services at UMKC School of Law.
In 2019, an estimated 1.5 million Missourians had criminal records. Yet that year, only 125 people were able to expunge their criminal records in Missouri.
Currently in Missouri, expungement is not easy, Pratt said. Most people can’t do it without paying several thousand dollars for a lawyer, she said, because of all the information that’s required—and often difficult to locate. Marijuana offenses are often municipal infractions, and criminal records in some municipalities aren’t digitized.
In February, Pratt and Suni are convening people impacted by the current expungement law, prosecutors, attorneys and elected officials together to figure out how to fix the challenges in the current law.
St. Louis County Prosecutor Wesley Bell and Jackson County Prosecutor Jean Peters Baker both told The Independent that they would welcome comprehensive legislative change on expungement for marijuana offenses.
“Any act that would mandate the expungement of certain records to remove the individual cost and burden from petitioners would be a welcome change,” Bell said. “It’s currently $250 to petition to have a record expunged, and it’s not always even successful.”
Baker also said people should not have to pay for expungement if the law is changed.
Brennan England moderated the January 20 town hall, and he pushed back on Legal Missouri’s requirement that people serve their entire sentence if they have convictions involving possession of more than three pounds.
“We already know that especially minorities are subjected to extensive, aggressive over sentencing,” England said. “So how can you guarantee that those that have actually been targeted the most by the War on Drugs are going to have a chance to get out?”
Payne responded that in his research, the Legal Missouri measure would be the “broadest expungement provision in the country.”
“I don’t know of any state that has gone as far as we’re going here,” Payne said. “In most states, any felony is off the board.”
Outside of legalization, legislators are also proposing smaller changes to the expungement law. Rep. Ron Hicks (R) has filed a bill to drop nonviolent marijuana charges if people get a medical marijuana card.
Sen. Barbara Washington (D) has proposed dropping offenses for marijuana possession of 35 grams or less.
Bell said his administration doesn’t prosecute marijuana possession cases of 100 grams or less, “which is a radical change from previous administrations.” If it’s more than 100 grams, he said, there has to be a clear intent to sell before they issue charges.
England said the voters and legislators should be looking at all options for expungement, even outside of any recreational-use measures.
From his viewpoint, England believes the expungement proposals need much more focus and they need to be the priority.
“Expungement starts with getting people out of jail,” England said. “It continues with repairing their lives, and then it ends with giving them direct opportunities to rebuild their lives directly in the [marijuana] industry.”