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THC you later: New York’s marijuana legislation may include plans to clear past convictions

Criminal Law

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You’re not ganja believe this. The past, low-level marijuana convictions of hundreds of thousands of New Yorkers could go up in smoke once adult recreational marijuana is legal in the state.

It’s not such a half-baked idea, but if—or more likely, when—adult recreational marijuana is legalized in New York State, individuals with prior, minor weed offenses may be able to have those convictions cleared, thanks to the likelihood that legislation will include provisions for expunging or sealing records in certain cases.

Past marijuana convictions often create stumbling blocks for those seeking employment, housing, acquiring licenses for certain professions and even traveling to Canada. Low-level marijuana convictions—even non-criminal dispositions—can interfere with a person’s ability to obtain federal student aid.  Statistics also indicate that people of color are disproportionately arrested and jailed for marijuana possession. Marijuana use is roughly equal among blacks and whites, yet blacks are nearly four times as likely to be arrested for possessing marijuana, an American Civil Liberties report found.

Between 2014 and 2016 in New York City, 86 percent of marijuana arrests were of blacks and Latinos, while just 14 percent were white, according to the Drug Policy Alliance Marijuana Arrest Research Project.

In light of these disparities, many public officials and others are calling for New York’s recreational marijuana legislation to include stipulations for clearing convictions. “Restorative justice,” including the sealing of records or expungement measures in certain instances, would help to lessen the disproportionate impact marijuana convictions have on individuals of color, legislators say.

Expungement completely erases a conviction, while record sealing is more ambiguous in that the conviction still exists, both legally and physically, but remains private.

Although details for clearing certain low-level marijuana convictions in New York State have not been agreed upon, potentially hundreds of thousands of New Yorkers with low-level marijuana offenses on their records could benefit from expungement or record-sealing measures.

Timeline

In his 2019 budget proposal, Governor Andrew Cuomo called for New York State to legalize adult recreational marijuana use, and legislators are currently hammering out the specific details. Cuomo has acknowledged that the legislative framework for recreational marijuana probably will not be completed when the fiscal year begins on April 1 (to allow for it to be included this year’s budget), however it is possible a deal may be agreed upon by the time that the Legislative session ends on June 19.

While recreational marijuana is not yet legal in New York State, a growing number of municipalities have already begun to expunge the records of low-level marijuana offenses. For example, in September 2018, Brooklyn District Attorney Eric Gonzalez announced an initiative to dismiss low-level possession marijuana offenses for those who request them. Gonzalez said that he expects prosecutors will consent in the majority of potentially 20,000 cases that have occurred since 1990 and an unknown number of older matters.

Gonzalez’s office also has stopped prosecuting most cases involving people accused of having small amounts of marijuana and said that he believes it’s right to clear convictions that would not be pursued today. Other entities are instructing police to look the other way when they encounter adults possessing or using small amounts of marijuana. Buffalo Mayor Byron Brown announced in February that he has directed police to stop enforcing low-level marijuana offenses.

Weed be good together

Let’s be blunt. Individuals with prior, low-level marijuana offenses may want to consider contacting an attorney to discuss the possibility of sealing or expunging their records once adult recreational marijuana is legal in New York State.

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