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Expungement for pot crimes wins approval

Sen. Katy Duhigg, D-Albuquerque, discusses a bill to expunge criminal records for minor cannabis possession convictions during a Senate floor session on Wednesday. The bill was approved on a party-line 23-13 vote and now advances to the House. (Eddie Moore/Journal)

Copyright © 2021 Albuquerque Journal

SANTA FE – A bill that would wipe certain cannabis-related convictions off New Mexicans’ criminal records won final legislative approval Wednesday – a move supporters described as a critical part of the state’s broader shift on marijuana policy.

The Senate voted 23-13 along party lines to pass the legislation, Senate Bill 2, with majority Democrats voting in favor and Republicans casting “no” votes.

A few hours later, the proposal cleared the House on a 41-28 vote, the final approval necessary to send the legislation to Gov. Michelle Lujan Grisham, who put it on legislators’ agenda for this week’s special session.

The expungement proposal is a companion measure to separate legislation that would legalize possession of up to 2 ounces of cannabis outside the home.

Supporters of Senate Bill 2 said it would help New Mexicans who have faced challenges finding housing and jobs due to past cannabis possession offenses on their record.

“What we’re trying to do here is rectify the mistakes of many years – of decades,” said Sen. Gerald Ortiz y Pino, D-Albuquerque.

Low-income New Mexicans and minorities, he said, have faced stiffer consequences than others for pot possession under the state’s criminal justice system.

But critics described the bill as rushed and problematic, while also pointing out it was significantly overhauled by a Senate committee earlier this week.

“This is just a poor bill. That’s why we’re amending it 12 times,” Senate Minority Leader Greg Baca, R-Belen, said during Wednesday’s debate.

Specifically, the bill would order the expungement of criminal records for marijuana-related offenses that would fall under the separately proposed cannabis legalization law.

It would also authorize the release of New Mexicans jailed for minor cannabis-related offenses, though it was unclear Wednesday exactly how many inmates might be freed.

Just 50 inmates at state prisons were incarcerated on charges that included marijuana possession, corrections spokesman Eric Harrison said Wednesday.

But none of them was in custody solely because of pot possession.

The impact on inmates in county jails wasn’t immediately clear.

Sen. Katy Duhigg, D-Albuquerque, said the expungement provision would be automatic under the legislation, meaning individuals would not have to file petitions in order for past cannabis convictions to be removed from public court records.

Instead, the burden for reviewing criminal records for expungement eligibility would fall largely under the Department of Public Safety and the state’s court system.

Meanwhile, criminal convictions for marijuana trafficking or possession of large amounts – more than 2 ounces – would not be subject to expungement because they would remain illegal under the proposed cannabis legalization law.

The expungement provision was initially included in a cannabis legalization bill that passed the House during this year’s 60-day session.

But that bill ultimately fell short in the Senate, in part due to opposition to “social justice” provisions among GOP lawmakers, setting the stage for the special session in which the expungement section was introduced as a standalone bill.

The expungement measure triggered intense debate in both legislative chambers.

Rep. Greg Nibert, R-Roswell, said the removal of public records would leave businesses with less information to make hiring decisions. A company might have a sound reason for wanting to know whether, say, a truck driver had ever been in trouble for use of an intoxicating substance, he said.

“By expunging some of these records,” he said, “we are not allowing employers to really get a good feel for the candidate that’s in front of them.”

But Rep. Andrea Romero, D-Santa Fe, said it makes sense to avoid penalizing someone for something the state determines should be legal.

“This is the right thing to do,” she said.

Prosecutors, she said, would retain the right to object to expungement if circumstances call for it.

The bill passed the House largely along party lines, though four Democrats joined Republicans and one independent against it.

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