A 'cumbersome process' has lead to few marijuana expungements, 5 years after being legalized in Mass.

Five years ago, Massachusetts legalized the possession of small quantities of marijuana, and the legislature later passed a law permitting people with marijuana convictions to expunge their records. But, that process has not gone as smoothly as many people hoped. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined host Sean Corcoran on Morning Edition to discuss the expungement process.

Sean Corcoran: First of all, Daniel, let’s get a handle on the terminology. What’s the difference between sealing a criminal record and “expunging” it?

Daniel Medwed: Sealing a case limits who can find out about the conviction — it essentially keeps it out of the general public view — but it is still technically part of your official record. It’s akin to “sealing” an envelope and keeping the contents under wraps with some exceptions. Expunging a record is a much broader form of relief — in effect, it erases the record entirely so that employers and even law enforcement cannot learn about it by accessing the CORI database, which stands for Criminal Offender Record Information and tracks arrest records, court appearances and so on.

Corcoran: Ok. Now, does the expungement process apply for all types of marijuana convictions or just certain ones?

Medwed: Just certain ones as clarified by a law passed back in 2018, two years after the legalization of marijuana. First of all, that law allows judges to expunge convictions for marijuana offenses that are no longer crimes, such as certain juvenile offenses and the possession or two ounces or less, but not for marijuana-related activities that remain criminalized. Second, the expungement provision only applies to Massachusetts convictions, not out of state or federal ones.

Corcoran: Daniel, assuming you’re eligible to expunge your marijuana conviction, how would you go about it?

Medwed: Sure, here’s how it works. You would fill out a “petition for expungement form” — which is available on the mass.gov website — by providing details about your case and then file it with the court where you were convicted. There’s no filing fee, or other upfront cost, and there’s an option for you to request a hearing if you’d like. The judge will grant the petition if she finds clear and convincing evidence that the conviction is eligible for expungement and thinks it would be “in the best interests of justice.”

If the judge orders expungement, the court will submit that order to the clerk of the court where the record arose as well as various criminal justice agencies in the Commonwealth instructing them to expunge the record. There’s also a law that requires state officials to notify federal authorities, like the FBI and DOJ, about the expungement and request they alter their records to reflect this development.

What expungement means, practically, is your record has disappeared and now you can honestly say you have “no record” when asked about it, in court or in documents, without running the risk of perjury or making a false statement.

Corcoran: Many people have been critical of this law for imposing unnecessary barriers to expungement. What’s your take on this? Is the process too hard and, if so, what could we do to improve it?

Medwed: I think it is too cumbersome, and the numbers bear that out. According to statistics cited by the Globe, a little under 2,200 people sought expungement, in various forms and for many different types of convictions, over a 2.5 year period between early 2019 and this past summer, and judges granted only 16% of those applications.

Also, get this: Only 17 — just 17 — of the petitions that resulted in expungements could be identified as relating to marijuana offenses. This suggests two things are going on: first, that there is a public education problem, that people are not really aware of their right to seek expungement, let alone how to navigate the process for how to do it. And second, that the process itself is too arduous and gives judges too much leeway, under the interest of justice standard, to reject even credible requests.

In terms of what we could do, there are several proposed bills floating around Beacon Hill that would address these issues, most notably one sponsored by state senator Adam Gomez of Springfield that would in essence provide for automatic expungement of eligible marijuana convictions. Incidentally, this comports with the approach in a number of other states that have legalized marijuana, including New York, and strikes me as the most equitable and efficient way.