As recreational marijuana becomes legal in state after state, a movement is afoot to clear the records of those convicted of pot offenses prior to decriminalization. Inevitably, this movement has put the spotlight on a broader question: How do we—and should we—clear criminal records of offenses that are no longer crimes?
“Marijuana just in general is a fascinating thing as far as criminal law goes,” says Bradley R. Corbett, a criminal defense attorney in San Diego. “(There are) a lot of issues because federal laws have not changed, so we’re talking about federal versus state issues. And while laws change all the time, that doesn’t mean they go back and (re)write the history book on people’s charges. The law was the law, and if you were convicted, it’s not retroactive.”
People formerly convicted of something that’s no longer criminal must follow their current state laws for clearing their record. This can mean either seeking to expunge their record of the crime, or to seal it, meaning it will no longer be accessible to the public.
“I don’t know of any kind of initiative in the past that has automatically wiped clean things that are no longer crimes or applied to do that. Right now, legislators are concerned about mass incarceration and mass criminalization, and most cases [that people are seeking to clear] are misdemeanors,” notes Jenny M. Roberts, a professor of law at American University in Washington, D.C., who specializes in criminal law and sentencing.
“In this digital criminal record era, everything’s online and everybody can look at it,” says Roberts. “It’s causing a world of problems for people, with discrimination based on criminal record, and most of the discrimination is perfectly lawful.”
Clearing records, one state at a time
Of course, each state also classifies what crimes are expungable. A recent New York Times article profiled Oregon resident Erika Walton as she cleared herself of a roughly 15-year-old misdemeanor charge for marijuana possession. She used a state law that lets people seal their records of the lowest-level felony, misdemeanor, or non-traffic violation if they haven’t committed any other crimes in 10 years or more.
Legal experts and lawyers are also watching Oregon because legislators created two laws to expedite their process: one says that current law standards must be used when reviewing claims for expunging records. The second speeds up the process of sealing the record for people who broke the law before they were 21.
“Laws about expungement and sealing are being passed or broadened in states every month. This comes together at the same time where legislators are decriminalizing marijuana,” says Roberts. “When something is no longer a crime, there’s nothing automatic in American law that says you automatically get that wiped off, but that’s what happening with marijuana.”
Wait, what about a get out of jail free card, too?
On October 7th, the Justice Department announced that it will grant early release to 6,000 federal prisoners. The Washington Post writer Sari Horwitz notes this is part of “…an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades, according to U.S. officials.”
Can someone actually doing time for a pot bust be released early as part of having their record cleared? “The short answer is that record clearing is a separate process from early release. An early release can come in many ways — by getting clemency from the governor (or the president, if it’s a federal conviction), by getting released on parole, by re-sentencing after a sentence was reversed on appeal,” says Roberts.
Right now, clearing a record of formerly criminal offenses comes after someone leaves jail. “You can’t get a case expunged until after you have completed all the court requirements such as serving your jail time,” Says Corbett
Legal experts say everything is connected, though. “The move in States to have more sealing and expungement is not unrelated to the move in both States and the Justice Department to get more people out of prisons where they are serving incredibly long sentences for minor offenses,” says Roberts. “There is a realization by many in this country that we have been both over-incarcerating and over-criminalized by saddling too many individuals with unnecessary criminal records.”
Legal hoops present challenges
Justice can move slowly. In California, Proposition 47 has reclassified certain drug and petty-theft crimes as misdemeanors instead of felonies. A provision in the new law allows people convicted of these crimes to have their records changed to reflect the new classifications. However, the process has been rocky.
“Being caught with any amount of cocaine was always a felony, but now it’s a misdemeanor. People only needed to file a piece of paper to have their records changed,” says Corbett. “But 10,000 to 20,000 people filed that same piece of paper. I have clients who haven’t had their records changed because of the backlog. The law is an ever-changing, never-perfect system, and once you are in the system, it’s a spider web that’s difficult to get out of.”
Even if a record is cleared thanks to a state’s expungement laws, digital records make a strong web. Corbett gives the example of someone clearing their record of a petty charge of shoplifting at Nordstrom 10 years ago. “Say I hire this person at my law office, but the company I pay to do the background check still has that old record in their system. It’s almost impossible to clear anything from anywhere,” says Corbett. “When it’s costing people jobs, we wonder what we can do to even the playing field.”
Bottom line: If you’ve been convicted of something that’s no longer a crime, you might want to talk to a criminal defense attorney in your state. You just may get a mulligan.
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