Courts argue for changes to cannabis crime expungement | Local News

Despite his ability to play a role in a new industry whose product once helped lead him to jail, Thibodeau says that like Arizona, New Mexico’s fledgling efforts to expunge old marijuana-related crimes are not yet adequate. Records are never really expunged, he said, but merely hidden behind a wall where police and court officials could be unfairly persuaded to further target those with past convictions.

“Once you get pulled over, and they’ve seen that, it’s not a bell you can unring,” he said. “Now it’s in the back of their mind, and they’re going to run a drug dog across your car and make up excuses.”

His skepticism and fears raise eyebrows because New Mexico’s Cannabis Regulation Act was designed to ensure those charged with like crimes in New Mexico would not only enjoy an opportunity to participate in a burgeoning new cannabis industry, but also would have records of their charges and convictions eliminated.

Provisions in the law require automatic expungement of cannabis-related crimes. Under the law, expungement must take place within two years of an arrest or conviction. New Mexico courts have argued, however, the burden of examining what could be up to 155,000 criminal cases has been too much to bear, putting the expungement process virtually on hold.

State lawmakers may decide in the upcoming legislative session if the cannabis law should be altered to relieve courts — perhaps placing the burden of records expungement on those who want their cases cleared by requiring them to apply for the process.

C. Shannon Bacon, chief justice of the state Supreme Court, has said expunged records are not destroyed and remain available to courts and police.

“They’re walled off from public access, but they do still exist,” she told lawmakers in November during a legislative committee meeting.

Thibodeau said his marijuana use got him into trouble with the law at a young age, a habit that led to a burglary charge, the final blow that landed him an eight-year sentence.

“If I had never had the marijuana crimes, I would have never resorted to burglary. They’re what led me down the path of crime because they roadblocked me from going to school and getting good jobs,” he said.

After he was released and on his feet, he never bothered to seek expungement of his crimes under Arizona Proposition 207, a pathway for those with cannabis-related convictions to clear their criminal histories. He vied with 1,300 other applicants in Arizona’s lottery system for a chance to win one of 26 reduced-fee “social equity” cannabis business licenses.

He wasn’t that lucky, so he abandoned his plan and left the state to take his chances in New Mexico’s newly legalized cannabis market.

Chastened by his Arizona experience, he is hopeful many people in New Mexico will have their cases expunged as the cannabis law requires.

Advocates refer to expungement as one of the cornerstones of the Cannabis Regulation Act because it’s part of a social equity plan that aims to make reparations to people affected by criminal justice practices that disproportionately targeted certain groups, such as minorities, during the nation’s so-called war on drugs, a decadeslong effort.

The law also requires the state to resentence or dismiss sentences for people now incarcerated for cannabis-related convictions.

But court officials argue they don’t have the funding or staffing needed to comply with the law.

Bacon urged state lawmakers to consider revising the language of the law to relieve the courts from reviewing the caseload, which she called a “Nancy Drew project.”

“You can’t just put in a magic code that says ‘cannabis,’ and it will identify those cases where there are great charges,” Bacon told lawmakers on the Courts, Corrections and Justice Committee.

“This has created an enormous amount of work for the judiciary that is unfunded,” she said.

She argued there is already a process in place in which people can petition to have records expunged.

State Sen. Katy Duhigg, who co-authored the bill creating the cannabis law, argued asking people to seek their own expungements would place the burden “on the folks who are least able to bear it, which is the victims of the war on drugs, whom we sought not to burden further while fixing the mistakes of the past.”

She acknowledged the challenges but noted “20 states have at least some automatic record clearing. Four states have a fully clean slate automatic approach. I don’t question whether there is a need for changes. I would like to see changes that don’t burden the individual at the heart of this.”

Johnn Osborne, Duhigg’s law partner who specializes in helping clients navigate New Mexico’s cannabis industry, said the state law “envisioned an automatic deal.”

Ellie Besancon, executive director of Santa Fe-based Red Barn Growers, learned firsthand the difficulties of records expungement. Her company’s social equity plan required employees to create an “expungement clinic.” They consulted with the state Department of Public Safety and placed advertisements seeking people with “victimless, nonviolent” cannabis charges.

Fewer than a dozen people showed up for two on-site clinics.

“It was eye-opening to see what an individual would have to go through to find court case numbers, to find their paperwork,” she said. “It’s a daunting task, and there needs to be additional help for these folks.”

She does not know if any clinic participants were successful in having their charges expunged.

Some people with crimes on their records said they, too, are unsure if those have been expunged.

Matt Muñoz, who has a 22-year-old conviction for cannabis possession, said he initially thought the state had cleared him of the count, but now he isn’t certain. He never received documentation.

He and his father recently went to the courthouse and police station looking for the expungement record, but couldn’t find anything. Although the conviction didn’t show up on a recent background check, he wonders if it is still lingering in a file somewhere.

Muñoz, 40, detailed the dire effects of the minor charge on his young life, recalling the loss of a college scholarship that delayed his graduation until he was 28.

“That five grams of cannabis stunted my growth for quite a while,” said Muñoz, now the chief innovation and finance officer for Carver Family Farm, a cannabis dispensary and grow facility in Albuquerque. “It stunted what I thought I could do in the world.”

Emily Kaltenbach, who chairs the New Mexico Cannabis Regulatory Advisory Committee, said the state’s expungement process is “extremely burdensome” for those who have to petition for it.

Kaltenbach, like other advocates and lawmakers who helped draft the cannabis law, believes the process should be automatic, even it requires the state judiciary to take on a heavy workload to get the job done.

“One, do people know they can do it? As a state, I don’t believe we’re doing much to educate people on their rights to petition,” she said. “Secondly, there is another obstacle in the time and resources it takes to do that. We’re talking about the most often marginalized people in our communities. Often they have to hire a lawyer. It’s not fair. We have to repair the harm. The burden needs to be on the state. Not on the individual.”

The court expungement process is not a recurring one, Kaltenbach noted. “Once those records have been expunged or addressed, going forward it’s not going to be quite the same burden.”

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