Is carrying around a marijuana conviction weighing you down? There could be hope on the horizon for the estimated 150,000 New Mexicans who could be eligible for an automatic expungement.
On June 29 personal possession and cultivation of cannabis will be de-penalized, the date the new law takes effect.
Last April New Mexico Governor Michelle Lujan Grisham signed a duo of bills amending the state’s marijuana policies. First off is House Bill 2 that sets parameters to legalize and regulate cannabis possession, production and sales for adults. Second, but no less impactful, Senate Bill 2 takes things a step further and facilitates the automatic review and expungement of people convicted of low-level marijuana offenses.
Pay It Forward
Ann M. pleaded guilty to marijuana possession charges 11 years ago. She says this new law will not necessarily impact her personally, because she has aged out of the employment market. But she believes the law, for someone younger with their lives ahead of them, will be life-changing.
“This is a long time coming. It is good because those who come after this will not go through the fear and anxiety of not providing for their family and never working again. There is dignity that goes with work. Volunteering was not often available either. Using cannabis should not be a crime,” Ann M. said.
At one point, she was so discouraged about her lack of meaningful future employment, she contemplated suicide. So what does it mean to folks like Ann M. who won’t benefit financially from this new law? She said that one benefit is that a burden has been lifted. She no longer has to justify or explain herself. And she’s comforted knowing that other people may not have to live with the stigma.
What Does It Say?
The expungement bill is confusing in its 12 pages. Some of it says that, if a person was charged with an offense involving cannabis that is no longer a crime on June 29, the effective date of this bill, then all public court records shall be automatically expunged two years after the date of the arrest or conviction. There is lots of verbiage about employment discrimination. It does not clearly say how far back the expungements will go.
Just as complicated is what it means to someone in a correctional facility such as a county jail or prison on a cannabis offense that is no longer a crime, or an offense that would have resulted in a lesser crime, if the new law were in effect. Does that facility now need to notify the court to expunge or reopen to consider dismissal of the sentence?
The New Mexico Department of Public Safety are the reviewers of the public records in the state criminal history databases. It is, ultimately, up to them to identify those potentially eligible for expungement action.
We chatted with one of the cannabis movers and shakers to get a clearer picture of what this means on the streets to real folks—New Mexico State Senator Katy Duhigg, a Democrat representing District 10, which is roughly on the Westside, who is an outspoken advocate for cannabis legalization and expungement. She also owns a law firm specializing in cannabis law.
Expunge = Gone?
Sen. Duhigg said one of the most important things people have to understand about expungement is what it means under New Mexico law. Cannabis convictions are not the only ones that can be expunged. Other violations and/or convictions can be petitioned for expungement. This includes citizens who were released without conviction. But it is not a magic eraser.
“The records are not erased,” Duhigg said. “They are only removed from the court’s public record databases,” For instance, if one went to the nmcourts.gov, the state’s court website to look up a person, the expunged conviction would not be there. But it still exists. If a real background check—such as the ones done by the Department of Public Safety—was done, the marijuana conviction will be there. It will also be on other internet sites such as mugshots.com, as those are not public record databases.
Who and How
Duhigg said potentially impacted folks who have completed their sentence can wait and let the DPS reviewers get to their case. Or they can file a petition, either pro se or with an attorney, to start the process in the court where the conviction occurred. The prosecutor and the defense attorney of record will be notified as well and given the opportunity to weigh in on the expungement. If all agree then the court will dismiss the conviction. For those still in a lock-up or working through their sentences on the outside, it is up to the department or facility to notify the court. Or they can file an individual petition to get it going. It is not a fast process or an easy one, but perseverance will pay off.
The DPS has until Jan. 1, 2022 to identify all past convictions eligible. Then prosecutors have until July 1, 2022 to give their input before the court makes a final decision and sends it back to the DPS to either expunge or not. Apparently, DPS controls the records that become public.
We asked Duhigg how far back will the expungements go? There is not a clear answer in the verbiage of the bill. She said it is not specifically stated in the bill, but it is her understanding that it is for anyone still living that has a cannabis conviction in the public record database. This reporter was able to find court records online at nmcourts.gov going back at least to 1980. Luckily, as Duhigg pointed out, this is a limited universe with no more of these low level cases coming into the courts. For more information read the bill at nmlegis.gov/Legislation/Legislation?Chamber=S&LegType=B&LegNo=2&year=21s or contact your favorite attorney.