Up in Smoke: How Expungement of Cannabis Crimes Will Work Under the MRTA

By Brendan Kennedy

Up in Smoke: How Expungement of Cannabis Crimes Will Work Under the MRTA

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In the weeks since New York Gov. Andrew Cuomo signed the Marijuana Regulatory and Taxation Act (MRTA) into law, advocates, lawmakers and legal experts have been touting the economic and social benefits that the bill will have on communities most impacted by the war on drugs.

During a recent New York State Bar Association (NYSBA) webinar, “What Lawyers Need To Know About The Marijuana Regulation And Taxation Act,” Dorothy Powell, senior counsel for the New York State Senate Democratic Caucus, and Robert Masters, chair of the NYSBA Criminal Justice Section, discussed the often overlooked aspect of the MRTA, automatic expungement of records for people with previous convictions that are no longer crimes.

Expungement of Records

Prior to 2019, expungement did not exist in New York as a legal concept. Instead, records were sealed, a process that is fundamentally different from expungement, according to Powell.

“When a record is sealed, pictures and fingerprints are destroyed and all other paper records are put under ‘seal,’ legally, however, that record can be accessed under certain circumstances,” Powell said. “When a record is expunged, it is destroyed where possible or marked as expunged. The big difference being, that the record will be unavailable to everybody except the person whose record it is.”

Powell went on to say that convictions for records that are expunged will not prohibit licensure or employment where those crimes were previously a barrier. Most important, a person whose record has been expunged will no longer have to disclose that on a job application.

While the decriminalization of certain marijuana offenses was signed into law in 2019, the MRTA goes well beyond that by eliminating article 221 of the penal law, which contained all the old marijuana penalties and creating article 222 of the penal law, which contains the new penalties.

Under the MRTA, New Yorkers will be allowed to possess three ounces of cannabis flower or 24 grams of concentrate and grow up to three mature cannabis plants at home, with a limit of six per household.

Reduction of Charge

In addition to expunging from records charges that are no longer criminal offenses, the MRTA also seeks to deal with sentence reductions, meaning, someone goes from a conviction of a felony to a misdemeanor.

“This is a much more complicated process because we can’t just run a computer program and automatically change sentences or override court decisions,” Powell said.

Powell went on to outline the way in which a person whose sentence has been reduced can accomplish that.

“A person can file a motion to have that old conviction vacated and for a new conviction to be imposed,” she said. “The court has to presume that the change in charge satisfies the requirements of having that old conviction that has now been reduced to a lower charge.”

There is a process by which the District Attorney’s office can rebut this presumption but the DA must be able to show ‘clear and convincing’ evidence that the person does not meet the requirements.

The MRTA also lays out a timeline by which these actions and law changes go into effect. The penal law changes took effect immediately on March 31, 2021, while the criminal procedure law changes on automatic expungement have an effective date of no later than two years after the date of the legislation.

Not So Simple

In a perfect world, the process of automatic record expungement would be uncomplicated but as Masters noted, the practice of law is full of complications.

“Most of the complications stem from the practical problems and the interconnection with the daily practice of law and the criminal justice system,” he said.

For example, the first set of automatic expungements that were signed into law in 2019 were supposed to take place over one year, starting in August 2019 and ending in August 2020 but the court shutdown due to COVID-19 complicated that process for the Division of Criminal Justice Services.

According to Masters, the division identified 202,000 cases that needed to be expunged after the 2019 law was signed but were unable to expunge all records yet.

There are an additional 107,000 or so cases that are supposed to be expunged through the MRTA, and the division is optimistic that they will be expunged within the required two years.

“We can expunge the files in New York today but the fact remains that despite expungement, printouts of these files exist elsewhere,” Masters said. “It’s important for people to be conscious of that.”

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