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Sensi Magazine

Off the Record, Part 2

Jun 26, 2019 12:38PM ● By Leland Rucker
One of the knottier problems facing any state that legalizes cannabis is what you do with people who are in prison or have on their record an offense or crime, like simple possession, that isn’t a crime any longer.

Cannabis convictions rarely involve long prison terms, but even small blemishes on criminal records can haunt you for life. You can be denied a job, or a chance at public housing, or a bank loan, even years later, because of that mark. There are 77 million Americans with convictions on their records, a good number of those 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 any adult in Colorado can buy in a store?

Colorado’s Amendment 64, passed in 2012, contained no provisions for expungement or sealing of criminal records. It just wasn’t part of the conversation at that time. (To expunge means to completely eliminate a criminal record. Records can also be sealed, which means they can only be opened under certain conditions. For a deeper look at this topic, visit sensimag.com to read part one of “Off the Record,” a special report published in the January 2019 edition.)

As more states legalize, that’s changing. Illinois, the second state to legalize through the legislature rather than ballot initiative (Vermont was the first), has announced a plan to automatically scrub records for all marijuana convictions as part of its legalization process. “When California and Massachusetts wrote their laws, they actually sealed records. People here [in Colorado] did not have that foresight,” says Eric Escudero, communications director for the city of Denver’s Department of Excise and Licenses. “We’ve had to step in and, unfortunately, we can’t automatically clear records by state law.”

Escudero explains that he has spoken with a man convicted for possession of a marijuana joint more than a decade ago who was denied a position as a maintenance supervisor in public schools. A woman with a nursing degree who has a single record for one sale years ago was not allowed to get a nursing license. “We’ve seen so many cases of how this has affected people’s lives,” he says. “They couldn’t get an apartment, put a roof over their heads. They can’t get federal scholarships. Want to serve your country? You can’t join the military.”

Things are changing, but not quickly enough, Escudero says. “It’s a victimless crime. What it comes down to is this: Does the punishment fit the crime? Anyone can agree that it does not. Hopefully we’ll see the state take action and more people can take advantage.”

Denver is trying to make it as easy as possible with its Turn Over a New Leaf program to eliminate low-level cannabis convictions that happened in Denver before legalization. The city estimates that more than 10,000 people might be eligible to have their records vacated. So far, only about 400 have applied, and only 87 of those have been accepted because the applicants’ offenses weren’t committed in the city or county of Denver. “We can’t watch people suffer, and we’re taking action to help as many people as we can,” he says. “Unfortunately, it’s a more difficult process. We had people from Florida applying,” Escudero says. “We have a website where people can jump online and apply,” he says. “They’ll be contacted by a district attorney who will try to make it as easy as possible. And it’s free.”

Still, he’s disappointed in the turnout so far. He says the city has done a ton of outreach, through flyers, social media and working with neighborhood organizations to get the word out. “As something new, we went to county jails to get people in there. We’re looking under every single rock to make sure we do everything we can to overturn the negative effects of the Drug War and be a model for other cities across the country.”

Escudero admits that part of the reason might be that someone who was arrested might not be eager to return to the system. “We worry that people might be scared to go back to the same place. We have to rebuild some trust.”

Boulder District Attorney Michael Daugherty started a countywide program with the same goals in mind. “Currently, any person can petition the court and have a conviction for a marijuana offense vacated,” he says. “It’s my strong belief that we should not put the burden on the individual. For that reason we launched Moving on from Marijuana. Anyone can come to our office, attend one of our clinics, or fill out the application online on our website. We also worked out a waiver of the 65-dollar fee.”

Still, of what they estimate might be a couple of thousand people eligible, only about 20 have taken advantage so far. “It highlights the challenge we have,” Daugherty says. “They only take advantage of it if they hear about it and make time to do it. If someone has an offense from 2003, they might not have any idea that this even exists.”

Daugherty says the real solution is for the legislature to take up the issue statewide next year and make anything legal now stricken from people’s records. Otherwise, he says, the next step will be to reach out to eligible offenders at their last known address.

“What I would like to see happen is that we have statewide legislation that makes it automatic, so they don’t have to do anything. It’s so important to get rid of collateral consequences so they don’t have to worry about being on a list for school or a job for something that’s legal today.”

How to Apply
To participate in Denver’s Turn Over a New Leaf program, you must attend a clinic or apply online at DENVERGOV.ORG. Anyone with a low-level offense committed in Denver that was based on conduct now legal under current law, including possession of less than one ounce of marijuana, is eligible. Low-level cases involving hemp, paraphernalia, or infused products are also eligible. If you’re unsure, the district attorney’s office will help determine eligibility.

If your offense happened in Boulder, you can apply for the Moving On From Marijuana program by filling out a form online. Visit BOULDERCOUNTY.ORG and search for “Moving on From Marijuana.” You will be contacted to see if you are eligible.