States That Have Decriminalized Marijuana Should Expunge Prior Pot Convictions, Activists Say

Photo Credit: Eva Russo

A group of legal activists is calling on district attorneys in eight states that have legalized or decriminalized marijuana to take the next logical step: expunge the records of people charged with misdemeanors related to marijuana possession.

The Lawyers’ Committee for Civil Rights Under Law, an advocacy group, sent letters to 201 officials in eight states: Alaska, California, Massachusetts, Maine, Nevada, Oregon, Vermont, and Washington last week, pointing out that current procedures to expunge convictions for misdemeanor marijuana possession are cumbersome. The committee encouraged the district attorneys to follow the lead of San Francisco District Attorney George Gascón, who announced in January that he would expunge and then dismiss thousands of misdemeanor and felony marijuana possession cases going back to 1975.

“While drug policy on the federal level is going backwards, San Francisco is once again taking the lead to undo the damage that this country’s disastrous, failed drug war has had on our nation and on communities of color in particular,” he said in announcing the move.

In the letter to Randy Flyckt, prosecutor in Adams County, Washington, the committee argued that expunging marijuana-related misdemeanors would help remove barriers to seeking employment and housing for those who have been convicted of drug crimes.

Myesha Braden, director of the Criminal Justice Project at the Lawyers’ Committee, told The Intercept that expunging these records offers an opportunity to make amends for arresting people in the past for what is no longer considered a crime. “We can’t fix what happened for all the various previous policies that focused on the ‘war on drugs.’ We can’t undo everything. But this is relatively low-hanging fruit that these district attorneys can do a very small thing that will have a tremendous impact on people’s lives,” she said.

Retired Judge Shira A. Scheindlin, formerly of the U.S. District Court for the Southern District of New York, told The Intercept that while a district attorney’s powers can vary by state, prosecutors generally have the power to fulfill the request that the Lawyers’ Committee is making. “A district attorney can, in most instances that I know, go into court, a local state court, and make a motion to have a prior conviction expunged,” she said.

Those types of motions can be opposed, usually by the victim of a crime, “but I think the whole point is these are low-level marijuana arrests with no violence, no guns, no big quantities — nobody’s going to oppose it,” Scheindlin noted. “If the district attorneys decide to do this proactively, I don’t think a judge would have any trouble granting the motion.”

California’s experience with expungements illustrates why empowering district attorneys to make the call, rather than having individuals pursue expungements themselves, can be so valuable. In 2016, the state passed Proposition 64, which enables Californians to get their marijuana convictions expunged. But the process is lengthy and bureaucratic, and many people don’t have the expertise or the time to go through it. As of September 2017, prior to Gascón’s announcement, only 232 petitions for expunging records had been filed.

“The district attorneys in San Diego and San Francisco have said, ‘You know, we have the capacity to prevent people from running the gauntlet. So why don’t we do it?’” Braden said. “And that makes a tremendous difference, because people who otherwise would not have had access to expungements or would not have been aware or would not have had the wherewithal to go through this very complicated process are now obtaining an incredible benefit.”

The San Francisco District Attorney’s Office itself files the motion with the court, in what is usually a simple process. “The court will sign and process the motion, sending petitions for dismissal and any relevant information to state actors, without the need for any court appearance,” said an official from the office. “This expedites the process and saves the court the time and resources involved in having to calendar cases. It also ensures that all entitled to the remedy receive it without having to hire an attorney.”