Marijuana Convictions Take a Hit

By Rachael M. Sedlacek posted 01-07-2019 09:43

  

Marijuana is legal! (Not really, but kind of at the state level under certain circumstances.) Undoubtedly you will have a variety of people say this to you in the coming months. A burning question that might follow: can my (friend’s) possession conviction from college now disappear?

Proposal 1, enacting the Michigan Regulation and Taxation of Marihuana Act, had no provisions for criminal expungement. (The expungement clause was axed from the original proposal.) Of course, the legislature could choose to add them at a later date. More immediate relief may come from Governor Gretchen Whitmer, who has hinted at the possibility of clemency. But what would (or should) be the scope? Would it cover only those with charges pending, or would it extend to jailed offenders?

Here’s how some other municipalities, states, and countries have handled the issue:

  • San Diego and San Francisco: When marijuana was legalized in California in 2016, the ballot measure allowed people to petition to have their marijuana convictions eliminated or reduced. District attorneys in San Diego and San Francisco have been proactively reviewing city criminal records (back to 1975) and eliminating misdemeanor convictions automatically because the petition process can be costly and time consuming. The San Francisco district attorney is also reviewing felony convictions to see whether they qualify for a reduction.
  • Seattle: Judges recently signed an order detailing a process for vacating marijuana possession cases prosecuted before marijuana was legal statewide. The order was in response to a motion filed by the Seattle city attorney.
  • Colorado: Under state law, certain offenders may petition to seal their criminal records regarding marijuana use that would no longer be illegal. The governor has also issued several pardons for those imprisoned for nonviolent marijuana offenses and specifically invited at least 40 others currently jailed to petition for a pardon.
  • Oregon: Oregon has a statute covering eligibility for setting aside marijuana convictions. Defendants over 21 who complied with their sentences can petition to have their convictions set aside beginning one year after the judgment was entered. All convictions before April 21, 2017, are treated as misdemeanors, regardless of whether they were felonies when charged.
  • Canada: Prime Minister Justin Trudeau’s government has proposed an expedited path to apply for record suspensions (pardons) for those with minor possession convictions. Fees would also be waived. The logistics are still uncertain as Parliament has yet to pass legislation. Critics are arguing that pardons won’t go far enough because they won’t entirely erase criminal records, as expungements would.

Another important question is what to do if possession was only one of several charges. This hasn’t been dealt with in a lot of jurisdictions, but Oregon’s statute limits expungement eligibility to those who haven’t been charged with another offense.

Daniel Grow will be in our studio tomorrow to give his thoughts on the outstanding criminal issues post–quasi legalization in Michigan. We’ll let you know when that is posted in the Partnership.

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01-08-2019 16:30

Kurt and Kenneth, thanks to you both for weighing in on this issue.​

01-08-2019 13:42

Although I take the opposite philosophical view of Kenneth Charles Baran,  I respect his views.  It is about personal freedom.  Having a criminal record is still a very unfortunate unnecessary restriction on personal freedom.  Since the majority of the people have determined that use of a small amount of marijuana is something people should have the freedom to explore, nobody should be living with the stigma of a conviction which would now be illegal.

01-07-2019 11:10

Although I see some merit of expungement for marijuana possession or use convictions.  I have to wonder if retroactive expungement is really appropriate.  After all, possession and use was illegal at the time that these convictions were obtained.  Moreover, when we consider the rule of law, how does that affect how law abiding people who refrained from illegal conduct view the legal system.  For something that is illegal today, perhaps the government may just change its mind and the illegal conduct is washed away.  It seems to me that automatic expungment may be a reward for bad behavior and encourage bad behavior in others.