Marijuana expungement reforms continued to accelerate last year, and record relief has now attained a more prominent role in the broader legalization movement. As we documented in our recent report on 2020 criminal record reforms, six states enacted specialized marijuana relief laws in 2020, following 7 states (and D.C.) that did so in 2019, and 4 states in 2018. This brings the total number of states with specialized marijuana expungement laws to 23.
In Congress, the House passed the Marijuana Opportunity Reinvestment and Expungement Act in November, which establishes a process to expunge convictions and conduct sentencing review hearings related to federal marijuana offenses. However, the Senate did not bring it up for consideration so it will have to be reintroduced in the new Congress.
In 2020, Arizona and Montana approved ballot measures to authorize expungement for many marijuana offenses; Vermont made expungement automatic for marijuana possession of 2 ounces or less; Michigan and Utah streamlined marijuana record relief procedures; and Virginia restricted access to records of marijuana possession offenses. These laws are described in greater detail below.
Editor’s note: In 2019, New Jersey enacted a “clean slate” expungement authority that will eventually be automatic and is now available by petition. The same law directed the development of an e-filing system that is expected to eliminate many access barriers in the existing petition-based process. A detailed description of New Jersey’s expungement authorities, including its new “clean slate” law, can be found in the NJ profile from the Restoration of Rights Project.
The New Jersey Courts recently announced the statewide launch of its eCourts Expungement System developed in accordance with recent amendments in the law to help increase efficiency of the expungement process. The new system allows attorneys and pro se petitioners to create and file petitions for traditional, “clean slate,” and cannabis-related expungements. It introduces a number of efficiencies, including accessibility of state records databases, document creation for expungement petitions, and automatic service of applications on numerous parties.
Electronic filing is an important step as the state moves towards an automated expungement system, embracing the development of a “clean slate” model. Under the new law, the state will develop and implement an automated process to expunge conviction records after a period of ten years from the most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration whichever is later. A task force will be established to examine, evaluate and make recommendations on its implementation.
But for now, the Expungement System should make the expungement process much easier for many who have access to computers and the internet. Previously, petitioners, even those who were filing through the JEDS system, were required to file several copies of their written or typed expungement applications and then serve copies on many other parties via certified mail, with return receipt requested, at a substantial cost. The court, however, will still accept paper expungement applications, important for those who may not have access to a computer or the internet.
Attorneys can access the system through eCourts, and pro se users can create an account through the New Jersey Court’s Self-Help Center (“Submit Expungement Petition Online” under “COVID-19 Self-Help Resources”).
Users can enter a municipal or superior court case number, and the expungement system will search and pull the petitioner’s court records from criminal, municipal and family court databases. Petitioners will have the ability to enter additional information not captured by the expungement system database; review and upload additional or supportive documents; and select or deselect which cases should be included on the proposed final order.
Once the petition is submitted and verified by the petitioner, the system will automatically create an order for hearing and serve the necessary parties with the documentation. It will also serve those parties if a final order of expungement is entered, and will provide a copy of the order to the petitioner.
The Expungement System does not provide eligibility advice or inform users as to whether any particular cases or any application is eligible for expungement. Users should consult with attorneys or advocates as to their eligibility prior to using the system or use other eligibility resources such as LSNJ’s CYRO eligibility interview. After filing, the prosecutor’s office will continue to be responsible for review of the petitioner’s application to confirm eligibility for expungement and will object if it determines that an application is ineligible.
Expungement System user guides are available on the Court’s website. LSNJ’s eligibility tools and resources are available at LSNJLAW’s Clearing Your Record Online.
Akil Roper is Chief Counsel for Reentry at Legal Services of New Jersey. Legal Services of New Jersey coordinates and supports the statewide system of legal services providing civil legal assistance to low-income individuals.
Editor’s note: We are pleased to publish this fascinating account of how one state transformed its record relief system in little more than a year from a standing start, written by a person who had a central role in the transformation.
In March of 2019, Utah Governor Gary Herbert signed HB 431, Utah’s Clean Slate law. At the time, this made Utah the third state in the nation to pass a law automating the criminal record expungement process. That law went into effect on May 1, 2020, but due to COVID-19, implementation efforts were delayed. Several months later, implementation is back on track, and it is now anticipated that Utah’s state agencies will begin clearing court and repository records of non-convictions and qualifying misdemeanor convictions by the end of March. Preliminary estimates suggest that hundreds of thousands of people across the state will have their records expunged automatically.
What follows is a story about how Utah, one of the reddest states in the nation, came to adopt such a generous and efficient record relief system. As someone who was involved in that process from the beginning, I hope it will be helpful to others seeking to push their own states in that direction.
The Case for Clean Slate
Perhaps the most tragic thing about the number of people struggling with the collateral consequences of a criminal record is that, in many states, so many are eligible to clear their records but so few ever make it through the process. The petition-based systems that exist in most states are costly, confusing, and cumbersome. Utah is no exception.
While Utah’s eligibility criteria for expungement are quite generous (allowing for multiple felony and misdemeanor records to be expunged), the expungement process is expensive and time-consuming. In most cases, individuals must hire an attorney to understand the complex eligibility criteria and procedural requirements. Then they must apply for and obtain from the Utah Bureau of Criminal Identification (BCI), a “certificate of eligibility,” which expires after 90 days and involves additional cost. Then they must travel to several municipal courthouses across the state to file their paperwork in person, and potentially go back to court later for a full hearing before a judge if either the prosecutor or the victim objects. From start to finish, the process can take more than a year to complete. As a result, only around 2,000 expungement petitions are filed statewide each year, which represents a small percentage of those who are eligible.
The Path to Clean Slate
Utah’s Clean Slate story starts with jobs. In 2018, Utah’s unemployment rate was under 3%, one of the lowest rates in the nation. I remember sitting in the back of courtroom, listening to a judge ask a defendant whether he worked. The individual said no, and the judge said, “Well why not? In this economy, if you can breathe, you can find a job.” But that wasn’t quite true. While jobs were plentiful, one thing was still keeping people out of the work force: criminal records.
In December 2017, I was working as the Criminal Justice Advisory Council Director for Salt Lake County. I received a phone call from the Department of Workforce Services, with a request to put on a criminal record expungement workshop for job seekers. The Department explained that while Utah’s economy was one of the best in the nation, criminal records continued to be a huge barrier to employment.
In my former life, I was a public defender, and had some experience with criminal record expungement work, since Utah has offered expungement on a fairly broad basis for several decades. I told the Department that I did not think that a workshop telling people how to navigate Utah’s complicated petition-based expungement process was going to be very effective, nor did I think that the target audience was likely to have the resources necessary to navigate it. But I was excited about the interest and wanted to do something. Instead, I asked whether the Department would be interested in trying to do something different: putting on an “Expungement Day” event. Unlike other expungement clinics, the goal of “Expungement Day,” would be to bring the lawyers, courts, criminal repository, and community partners into one room, and work together to try to streamline the criminal record expungement process into a single day, allowing anyone who showed up to leave with a clean record.
In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions. During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.
As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March. Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.
Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief. Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.
With these developments, we have again updated our chart providing a 50-state snapshot of:
(1) laws legalizing and decriminalizing marijuana;
(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and
(3) pardon programs specific to marijuana offenses.
As of this writing, 15 states and D.C. have legalized adult-use marijuana, and 16 additional states and one territory have decriminalized marijuana to some degree. Twenty-three states and D.C. have enacted expungement, sealing, or set-aside laws specifically for marijuana, or targeted more generally to decriminalized or legalized conduct (compared to 17 states and D.C. as of March 2020). Six states have developed specialized pardon programs for marijuana offenses (compared to 4 states as of March 2020)
This comment describes some of the history of marijuana decriminalization, legalization, and expungement reforms, recent trends, and the current state of the law in this area. It provides strong evidence of what Professor Douglas A. Berman has described as the “linking and leveraging” of the marijuana reform and expungement movements.
This final installment of the record relief chapter concerns expungement, sealing, and set-aside of conviction records. These remedies alleviate the stigma and discrimination of a conviction record by restricting access to the record and/or vacating the conviction. At the end of the section, we include a report card with grade for each state’s misdemeanor and felony conviction relief laws.
We expect to publish the entire “Many Roads” report later this week. In addition to a series of “report cards” on specific relief mechanisms, it will include an ranking of states for the effectiveness of their overall combined relief schemes.
A PDF of the section on conviction relief is available here. The full text follows, with end notes.
A thoughtful new article by Brian Murray recommends a new way of conceptualizing expungement that should make it easier for reformers to justify facilitating access to this record relief. In “Retributive Expungement,” forthcoming in the University of Pennsylvania Law Review, Murray argues that expungement should be seen as a way to end warranted punishment rather than to recognize and incentivize rehabilitation. The argument goes that if the legal and social disadvantages of a criminal record function as part and parcel of the criminal sentence imposed by the court, as opposed to a loosely related system of civil penalties that are activated by other laws and other actors, then the court has an obligation at some point to discharge it. While this argument is not new, Murray places it squarely in a modern retributivist framework.
In an earlier era, the drafters of the 1962 Model Penal Code embraced this idea of tying up the loose ends of criminal punishments through court-ordered dispensation, although they chose a more transparent form of remedy in judicial vacatur or set-aside. Before that, this function of ending punishment was performed by executive pardon. In modern times, as ubiquitous background checking has made a criminal record a lasting Mark of Cain, most agree that the record should be made unavailable for private and most public purposes at some point, unless disclosure is ordered by the court for some purpose authorized by law. Facilitating access to this record relief should be easier with the theoretical frame proposed by Murray.
Here is the abstract and a link:
Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy. Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry. But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief. Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel. And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy. Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records. But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.
In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm. While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state. Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors. An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform.
This Article suggests a different paradigm: retributive based expungement. It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners. Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment. A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied. As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap. It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue. In fact, some states are already moving in this direction and can serve as a model for the rest of the country. In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record.
Updated: January 2023 *See also December 2022 report & infographic: Marijuana legalization and expungement in 2022 † As used here, legalization means certain acts are lawful; decriminalization means certain acts may be punishable by fines but not incarceration (i.e. as infractions, petty offenses, civil offenses, etc). In all states, certain acts remain punishable by incarceration: see NORML’s digest of marijuana […]
The John Howard Society of Canada has a new post about a failed piece of Canadian legislation that would have provided automatic expungement of criminal records in that country. The post describes the effort to remedy the shortcomings of the current “one-at-a-time” record-clearing system, which it says is expensive (more than $600 to apply), bureaucratic, and “systematically works against poor and marginalized people.” As an example, it documents Canada’s serious “takeup” problem with its recent efforts to clear cannabis possession convictions: “despite the government’s claims of an enhanced process to grant pardons for cannabis possession now that it is legal, only a handful of the 250,000 or so Canadians with such records have received pardons so far.”
The post also discusses our report documenting U.S. expungement reforms in 2019, noting that while the problem of criminal records in this country is “much greater” than it is in Canada, we seem to be making better progress in dealing with it.
We reprint the introduction to the post below, and link to the piece.
Expunging criminal records
February 26, 2020
Last year Senator Kim Pate introduced a bill that would provide automatic expungement of criminal records in Canada. Under this bill, criminal records would automatically be sealed after a certain amount of time had elapsed following a criminal sentence unless there had meanwhile been a new criminal charge or conviction.
Expungement of criminal records is important because a criminal record has many harmful effects for a person’s entire lifetime, even decades after the end of their sentence. It is important to keep in mind that 3-4 million Canadian adults, or about 1 in 8, has a criminal record of some kind. Wherever you live in Canada, you likely have neighbours with a record. But, as another post on this blog showed, most people never commit a second crime, and this likelihood declines with every year that passes.
This is the third in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief. The full report on 2019 laws is available here.
Criminal record relief (expungement, sealing, set aside)
As in past years, the reform measure most frequently enacted in 2019 was record relief, i.e. expungement, sealing, or other mechanism to limit access to criminal records or set aside convictions. This past year, 31 states and D.C. enacted no fewer than 67 separate bills creating, expanding, or streamlining record relief. This total does not include a dozen other new laws authorizing non-conviction dispositions that will be eligible for record-clearing under existing law. A trend we observed in our 2018 report toward “a growing preference for more transparent restoration mechanisms” that limit use of a criminal record, as opposed to access, does not appear so obvious to us this year. If anything, jurisdictions appear to be looking for new efficiencies in clearing records.
In 2019, 27 states and D.C. made certain classes of convictions newly eligible for expungement, sealing, or vacatur relief. Five of those states enacted their first general authority for expunging or sealing convictions (North Dakota, New Mexico, West Virginia, Delaware, Iowa), making record relief available for the first time to thousands of people. Nonetheless, most potential beneficiaries of these new relief schemes find them hard to navigate: eligibility criteria are frequently complex and unclear, and court procedures are usually intimidating, burdensome and expensive. These and other barriers to access have been shown to discourage the law’s intended beneficiaries.
To obviate the need for individual applications, in 2019 three states followed the example set by Pennsylvania’s 2018 “Clean Slate Act” by enacting automatic relief for a range of conviction and non-conviction records (Utah, California, New Jersey). Specific provisions of these important new laws are described in the following pages, and in greater detail in the relevant state profiles in the Restoration of Rights Project. Six additional states focused automatic relief provisions on specific offenses or dispositions (
, Illinois, New York, Virginia, Nebraska, Texas).
Also notable were bills providing relief for victims of human trafficking and for marijuana offenses. Seven states and D.C. authorized relief for victims of human trafficking, allowing them to vacate, expunge, and seal a range of criminal records resulting from their status as a victim. Seven other states—all of which have legalized or decriminalized marijuana—authorized record relief for certain marijuana offenses, including two automated relief measures (New York and Illinois).
In addition to these marijuana measures, which often extend to arrests and other non-conviction records, eleven states extended relief to certain non-conviction records for the first time. Most far-reaching, new provisions in New York’s annual budget bill limited access to cases in which there has been no docket entry for five years; precluded the inclusion of such undisposed cases in background check reports; and extended New York’s automatic sealing of non-convictions to cases decided prior to the enactment of that relief in 1992.
Finally, thirteen states enacted 18 laws to streamline and/or make more effective the procedures for obtaining relief under existing mechanisms. Three states (Colorado, Washington, and New York) made particularly noteworthy and broad-based procedural reforms to their criminal records laws.
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To summarize the bounteous haul of record relief laws enacted in 2019, we have organized them into three categories: (1) new automatic relief schemes; (2) new petition-based relief; and (3) improved procedures and effect of existing record relief mechanisms.
An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction. Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law. It is available in PDF and HTML formats.
“Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project. “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.”
In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record. Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction. The group regards its model as the first step in a broader law reform initiative that will address conviction records as well.
Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction. Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation. These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case.
Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated. Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”
Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce. Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating. In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic.
Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support. “It is heartening to see similar reforms underway in other states, both red and blue, as well. I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.”
The model law would take this wave of criminal record reforms to a new level. It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused. Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction. Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending.
The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies. It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them.
David LaBahn, President of the national Association of Prosecuting Attorneys, indicated that organization’s support for the model law, stating that the collateral consequences of non-convictions “do not serve to make the community safer,” and that “the current structures in place to expunge a non-conviction record can be confusing and difficult for the layperson to navigate alone.”
This model law sets the stage for jurisdictions to address record relief for convictions more generally, and its structure and principles can be brought to bear on that important work.
The Collateral Consequences Resource Center organized this model law project. An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation. The model law report was supported by Arnold Ventures.
