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SPECIAL REPORT: Forgive and Forget?

Jan 15, 2019 07:36PM ● By Leland Rucker
Michael Diaz-Rivera was 19 years old and out with friends when he was stopped by police in Colorado Springs. “They pulled us over with guns drawn and asked us what we were doing,” he says. After he refused to allow a search of the car, a warrant was obtained, and officers found three bags, each with less than an ounce of cannabis.

Those three bags led to a felony distribution charge, and Diaz-Rivera, a citizen of black, white and Puerto Rican descent, wound up taking a plea bargain that reduced the charge from distribution to possession. Because he had a job, he wound up serving seven months on a work-release program with three years probation and restitution. When he tried to get his conviction expunged from his record, he found that can’t happen until 2023, because he had a reckless driving charge in 2013, and you have to go 10 years without any kind of offense.

“I can’t work in the cannabis industry, which was automatically interesting to me, because of the marijuana felony,” Diaz-Rivera says. “It’s an opportunity I would like to pursue. But they wouldn’t let me do something I was doing anyway.”

Erving Jean Jacques was arrested in Boston more than 10 years ago on a firearms possession charge and served a mandatory prison sentence of a year and a half. Though he wants to work in the cannabis industry, especially the medical side, the felony charge follows him around and prevents him from doing that in Massachusetts.

He found employers hesitant to hire him once they saw his record, and he had no idea how to break the cycle. “Whatever mistake I made in my 20s, society just won’t let that go. It’s a scarlet letter, basically,” he says. “I get it that I did something bad. But what about after? No one cares about that.”

 

Those are just two of the many untold stories of people who, because of mistakes made when they were young much of the time simple possession of marijuana can’t seem to shake once they’re back out on the street. Arrest records are for life.

Marijuana convictions rarely involve long prison terms, but any blemish can make life more difficult once you’re out. There are 77 million Americans with convictions on their records, many of them for cannabis and other nonviolent, drug-related offenses. What do you do with those who are imprisoned or have paid their debt for possessing a substance like cannabis that today they wouldn’t be arrested for?

The best way, of course, would be to allow individuals in those situations to have their records expunged or at least sealed from public viewing. (To expunge is to completely eliminate a criminal record. Records can also be sealed, meaning they can only be opened under certain conditions.)

Getting the word out is most important. Jacques told his story during National Expungement Week in Boston, a weeklong event in cities around the country organized through public-interest groups like Cage-Free CannabisCalifornia Cannabis Advocates, and Smart Pharm Research Group to raise awareness and provide support by offering employment opportunities, online resources, and health screenings. The goal is to shine a light on the problems people face after they think they have paid their debt to society. “Once you’re arrested, it’s difficult to get a job, get a loan, get housing,” says Joe Gilmore of the Massachusetts Recreational Consumer Council. “They just want to continue with their lives.”

As more states decriminalize, it would seem that the number of people arrested for cannabis infractions, especially for possession, would go down. That was the trend until 2017, when the number of arrests actually rose from the year before. FBI data indicate 660,000 people were arrested in 2017 for cannabis violations, and 600,000 of those, or 90 percent, were for possession.

Though African-Americans and Latinos make up 31.5 percent of the population, they account for a disproportionate 46 percent of those arrests. While some of the arrests reflect the continuing black market, it also means police are still arresting citizens for doing what people can do legally on the other side of a state line.

Expungement is a way to acknowledge and address the government’s past, says Shaleen Title of the Massachusetts Cannabis Control Division.“The ability to expunge a record allows people to live their lives and pursue opportunities without the failed War on Drugs following them around and obstructing them in a way that perpetuates the discrimination built into the criminal justice system.”

A Patchwork of Approaches

Let’s face it, the best time to tackle expungement is right now, as legalization takes hold. Canada once fined people up to $1,000 and gave them six months in jail for possession. Prime Minister Justin Trudeau, who campaigned on cannabis reform, has announced the country will initiate a program that would allow people convicted of pot possession before it was legal to fill out a form, much as it has for people convicted of same-sex partnerships, to get their records removed or sealed.

Oh, that it could be that easy here in the United States. “It just can’t move forward until federal law catches up,” says Julie Saltman of Buddle, whose practice in Boulder, Colorado, is devoted to helping people understand and navigate complex cannabis laws. “There’s just this sort of roadblock in terms of what’s been created by the federal law.”

There are bills pending in the US Congress that address various aspects of legalization. Sen. Cory Booker’s bill for legalization includes expungement of records for cannabis crimes, but it might be the least likely to get any movement forward. “You know, we sit here and we say, ‘Oh, it’s so crazy that you wouldn’t want to clear the record of people for this thing that we’re all now agreeing is legal,’ ” Saltman says. “But so many people in the government writing the laws don’t think that way. They think, ‘Well, it was illegal when you did this. So…’ ”

Events like National Expungement Week are a good start for raising awareness, but there’s plenty of work to be done to get this issue on the radar for the majority of people who can’t comprehend the problems those who have served time face in getting their lives back together.

In November 2018, legislators in New Jersey, who are now considering legalizing cannabis, proposed a plan that includes fast-tracking the procedure. “By streamlining the expungement process, the state can help ensure that people with criminal records for marijuana-related offenses get a clean slate,” Kate Bell, counsel for the Marijuana Policy Project, said in a statement. “Nobody should be branded a criminal simply for using a substance that is less harmful than alcohol.”

In September 2018, all seven judges of the Seattle Municipal Court signed an order to create a process to vacate cannabis offenses that were illegal then but legal now. More than 500 people could be affected, dating from 1996, when municipal courts began handling these cases, to 2010, when the city completely stopped prosecuting low-level cannabis offenses.

In Michigan, where voters just passed an initiative to legalize adult-use cannabis, new Gov. Gretchen Whitmer says her administration will take action to free anyone in prison and expunge criminal records for cannabis crimes that will become legal under the state’s recreational cannabis law.

Colorado allows juvenile records to be expunged, but adults can seal their criminal convictions. It’s a process that involves obtaining your criminal record and history, filling out forms and filing a petition, which is then reviewed by the court for approval.

That could change. On December 1, the Boulder County District Attorney’s Office announced that as part of a “Moving on from Marijuana” program, it would vacate and seal the records of people arrested for possession of less than 2 ounces and all paraphernalia charges which could affect 4,000 people arrested since 2008. Just a few days later, the city of Denver said it would begin proactively helping citizens get their records expunged. “This is really a program based on fundamental fairness,” Assistant District Attorney Ken Kupfner told newspapers. “It just seems like the right thing to do in these circumstances is to vacate and seal those convictions.”

When Colorado passed Amendment 64 to legalize cannabis for adult use in 2012, expungement of criminal records wasn’t part of the conversation. “Back then when Colorado legalized, nobody was thinking about this,” says Buddle’s Sarah Gersten. “And I think what states like Massachusetts and California are trying to do is make sure that that industry is accessible, particularly for those people who were harmed by criminalizing cannabis.”

Massachusetts, which opened recreational stores in November, passed a criminal justice reform bill last year that would allow people to get their records expunged or sealed. The Massachusetts Rec Council’s Gilmore says it took intense lobbying to get it into the current plan. “It’s restrictive, with no teeth, and it’s not helping the people it should help,” he says. But, he adds, it’s a start.

In 2014, California passed Prop 47, which allows many nonviolent offenses, such as drug and property offenses and shoplifting, to be changed from felonies to misdemeanors. Gov. Jerry Brown last fall signed Assembly Bill 1793, which requires the Department of Justice, before July 2019, to review hundreds of thousands of cannabis cases in the state’s database and identify convictions that should be dismissed, vacated, or reduced from a felony to a misdemeanor. And the city of San Francisco is working with a nonprofit organization that would allow cannabis convictions to be vacated within its jurisdiction.

Simplifying the Process

The key to making this work is to simplify the expungement process. Kathleen Bryson, a lawyer in Humboldt County, California, says people should seek out clinics at cannabis events and public defender offices that offer aid to people. She helps clients and former clients with expungement procedures and problems, which vary from county to county.

“Each county has a different character with different local rules and policies,” she says. “Humboldt County is generally known as a more progressive county than any of its neighboring counties. In particular, Mendocino and Trinity, the other two counties in the Emerald Triangle, have vastly different courtroom cultures from Humboldt and from each other.”

That leads us to Ingrid Archie. She had a troubled childhood, grew up in foster care in California and fell in with a bad crowd while staying in group homes. At age 18, about the time her first daughter was born, she was arrested for selling drugs and put on probation. She was arrested again after a gang friend stashed his cannabis at her place and did a three-year sentence in state prison.

 


After she was released, things didn’t get any easier. In 2009, she was laid off by a telecommunications company that had just hired her after it found her record. In 2013 she was arrested again and served three more years. While there, she found out about Prop 47. She educated herself, used the statute to get her sentence reduced, took back custody of her two children, and today works as the Prop 47 specialist for New Way of Life, an organization devoted to helping others break the cycle. 

Archie uses her story to give others the courage to do what she did. “It kind of helps give people hope because the laws were passed to make our community better, but they don’t understand how to do it,” Archie says. “When they see the impact that it has on my life, and to know it has worked, they want to take advantage of it.”