Trying to figure out who qualifies to have a New York marijuana conviction expunged? Reading the law is a brain-teaser, at best.
The recent legalization bill doesn’t even call it marijuana anymore — those criminal laws have been completely erased. It’s now officially cannabis.
The repeal of the old law is expected to clear 150,000 people of marijuana convictions, according to a state court system estimate.
For those who qualify, it’s great news: the courts and legal authorities are required to proactively go into their own records and erase all traces of any marijuana arrests, prosecutions or convictions. Background reports shouldn’t show any marijuana arrests, let along convictions, once the process is over in two years.
People who qualify for expungement don’t need a lawyer, don’t need to go to court and don’t actually need to do anything at all.
But how can you be sure which records will be expunged? There’s tons of numbers to crunch and legal jargon to read if you digest the law yourself.
Fortunately, criminal justice advocates — who lobbied for the legalization bill — have done the homework for you. There are two simple numbers you need to know, said Emma Goodman, an attorney at the Legal Aid Society of New York City.
Anyone convicted of possessing less than one pound of marijuana, or selling less than 25 grams (0.88 ounces) of marijuana, will automatically have their records expunged now, if they didn’t already, Goodman said.
That’s based on an analysis of the old and new laws, comparing the cutoffs between the two, Goodman said.
The new expungements come as this year’s marijuana legalization bill totally erased a dozen old laws that criminalized marijuana use and sale. And it required the powers that be to erase any records relating to those crimes that no longer exist.
Hence, an expected 150,000 expungements. That’s on top of expungements from a 2019 decriminalization law, which erased an estimated 160,000 convictions for low-level users. (The same process, which experts say worked well in 2019, will be used again to expunge records in 2021.)
So more than 300,000 marijuana convictions have been or will be expunged, between the 2019 and 2021 laws.
But that’s not quite the end of the story.
Despite erasing the old marijuana laws, the state also created nine new cannabis crimes — prohibiting too much personal use and keeping a hard line on selling to others. (The legal pot selling industry is not yet up and running.)
Trying to square the old marijuana laws to the new cannabis laws is complicated. First, let’s look at why so many people are getting their records expunged.
In 2019, anyone charged with possessing less than three ounces of marijuana had their convictions tossed. That shed anyone convicted of unlawful possession of marijuana, a violation, or the lowest criminal marijuana offense, a Class B misdemeanor.
That’s the roughly 160,000 expungements, which have already happened.
Now, the legalization law takes things even further: there’s no misdemeanor chargeable until someone has more than a pound of cannabis, or 25 grams for sale.
Technically, possessing anywhere from 3 ounces to 1 pound of cannabis is still a non-criminal violation, but that’s not something that anyone can go back and litigate now.
The same logic applies to selling cannabis: anything less than 25 grams is still illegal, but only as a violation.
Hence, the expungement limits of one pound possession and 25 grams of sale.
Those cutoffs mean that the vast majority of people convicted of marijuana crimes — including most casual users — will have any records of their arrest, prosecution and conviction expunged, noted Katie Schaffer, director of advocacy at the Center for Community Alternatives, which has an office in Syracuse.
But that’s not quite the end of the story.
The law does create headaches for people charged with high-level possession or sale. That’s because there aren’t any clean cutoffs once you’re convicted of more than one pound of possession or more than 24 ounces of sale.
The good news is that the new law isn’t more punitive, but could be less so, for those higher-level users. Figuring out exactly what new crime someone should face, however, can be tricky.
It’ll likely require someone convicted of higher levels of marijuana crimes to find a lawyer to help navigate the waters, Goodman said.
That’s because the new law requires the court system to reopen the files in those higher-level cases, looking for proof of the exact amount charged as part of the old prosecution. That could include reading the initial accusation, any indictment or any “bill of particulars” — a specific list of acts alleged — to determine what crime should be charged under the new law.
Broadly, people convicted of marijuana felonies might be able to get their convictions reduced to misdemeanors under the new law. And for the 14 people across the state imprisoned for marijuana possession or sale, those resentenced crimes are likely to set them free.
State and local authorities have two years to expunge all the records under the new law.
Staff writer Douglass Dowty can be reached at firstname.lastname@example.org or 315-470-6070.