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Erasing the worst of a War on Drugs

Copyright © 2021 Albuquerque Journal

New Mexico’s new recreational marijuana law that went into effect last week recognizes that the War on Drugs has left casualties in its wake, with minorities being disproportionately prosecuted for such crimes as marijuana possession. The legislation attempts to right some of those wrongs by having the criminal record of anyone previously arrested or convicted of a cannabis crime that is now legal “automatically” expunged.

But how this automatic system is supposed to work has district attorneys and some government officials confused and frustrated over the lack of guidance from the Legislature.

Part of the law requires district attorney offices to review individual cases and determine whether to challenge the expungement. However, district attorneys complain that they aren’t getting any increased funding or staffing to handle this workload.

DA’s dilemma

First Judicial District Attorney Mary Carmack-Altwies

First Judicial District Attorney Mary Carmack-Altwies, who is also a member of the New Mexico Cannabis Regularity Advisory Committee for the New Mexico District Attorney Association, said what DAs have been tasked to do is a “pretty hefty undertaking.”

She said she’s instructed her office to assist anyone who reaches out to have cannabis crimes removed from their public criminal record under the new law.

“I’m totally pro-legalization, so if we’ve got to work a few extra nights to help people get it off their record – it’s worth it,” she said.

Prosecutors have until July 1, 2022, to review all cases eligible for expungement and determine if they want to challenge the dismissal, expungement or redesignation of that case, according to the law.

Under the new law, expungement is supposed to be automatic, meaning “it’s supposed to just sort of magically disappear,” Carmack-Altwies said. She said her office is going to do its best to make that happen, but if people are interested in expungement, it’s probably in their best interest to reach out to the office.

“What’s really kind of unclear to me about the legislation – it just says “automatic” – but we don’t have any system in place that just automatically does something,” she said.

This means filing paperwork, which takes personnel and additional work.

Carmack-Altwies said that, fortunately, in her district, possession of marijuana wasn’t a crime that was heavily prosecuted, especially after the city of Santa Fe decriminalized possession of small amounts of cannabis and made it a low law enforcement priority. The process shouldn’t increase the work volume by a significant amount, she said, but the office is still dealing with a huge backlog from the pandemic.

9th Judicial District Attorney Andrea Reeb,

Ninth Judicial District Attorney Andrea Rowley Reeb said lawmakers didn’t look at who would be doing the expungements when they wrote the law. She said she thinks the term “automatic expungement” is still unclear.

Every case will need review because a misdemeanor marijuana charge might be attached to a case with two or three felonies. Ultimately, it all comes back to her office to review the thousands of cases, she said.

It’s going to be very burdensome and costly, she said.

To review all the cases by the July 1, 2022, deadline, Reeb said her office would need to hire outside people. She said she anticipates having to approach lawmakers for funding during the next legislative session.

5th Judicial District Attorney Dianna Luce

Dianna Luce, Fifth Judicial District Attorney and president of the New Mexico District Attorneys Association, said cannabis legalization and expungement will create a lot of work for district attorneys’ offices statewide.

“Obviously, it will mean a review by the prosecutors – the statute just says we have to object – the reality is we’re going to have to review and see what is the charge,” she said.

She said expunging convictions in criminal cases wasn’t clearly contemplated because it involves a jury verdict, judicial decision from a bench trial or plea agreement. For these cases, there’s going to be multiple documents that must be redacted or amended.

Rules and procedures

The New Mexico Administrative Office of the Courts is supposed to come up with the procedures on how to facilitate the expungements by December 31, 2021.

“The Judiciary is developing procedures to carry out its responsibilities under the new state law providing for the automatic expungement of arrest and conviction records of cannabis-related offenses,” Barry Massey, spokesman from the administrative office, said via email. “The Chief Justice has asked the Rules of Civil Procedure for State Courts Committee to draft a single set of proposed rules to implement provisions of the Criminal Records Expungement Act.”

The New Mexico Department of Public Safety must partner with the Administrative Office of the Courts to identify the individuals who need their records expunged, according to the law. The Department of Public Safety has until Jan. 1, 2022, to identify these records.

Regina Chacon, bureau chief of the Law Enforcement Records Bureau, said the department has identified about 155,000 instances of arrest or conviction that may be eligible for expungement or dismissal. Public Safety was able to use its criminal justice system repository to identify these records. This system contains records that date back to the 1950s and 1960s.

The department shared these records with the Administrative Office of the Courts to reconcile the data with the judicial information systems. It plans on sharing this information with prosecutors, the New Mexico Department of Corrections and defense attorneys by the Jan. 1, 2022, deadline.

“However, we have had to pull resources from other areas and from other units in the Bureau to assist with this project,” Chacon said.

The Legislature has allocated the Administrative Office of the Courts only $500,000 to come up with the rules for this new law. No other departments involved with the automatic expungement have received any funding.

Legislative review

Despite its challenges, expungement remains an essential part of correcting injustices against those arrested or convicted for something that is no longer illegal, state Sen. Katy Duhigg, D-Albuquerque, said.

Cannabis criminal records can make it harder for people to get a job, find housing, qualify for federal aid and more. She said the reason for automatic expungement is the Legislature didn’t want people to be additionally burdened by having to get those crimes off their record. Lawmakers didn’t want people to have to hire a lawyer, or those intimidated by the process not to get the benefit of an expungement, she said.

“We tried to make sure that we were building in timelines that would allow for all stakeholders to have a meaningful opportunity to take a look at these cases as they come up and respond to them, but didn’t stretch it out,” she said of the deadlines.

Duhigg said district attorneys provide appropriate oversight in the expungement process and double-check expungement cases.

Most people aren’t sitting in jail or prison only for cannabis convictions, she said. It’s usually cannabis and something else. This means the law would reduce their sentence, but doesn’t equate to their release.

Eric Harrison, New Mexico Department of Corrections spokesman, said there are about 100 people – a combination of inmates, and people on probation and parole – whose sentences would be affected under the legalization.

However, no one is currently incarcerated solely for a marijuana possession charge that would result in release, he said.

The legislature will likely have to work out some kinks in the law during the next session, Duhigg said. But she emphasized that cannabis expungement is a temporary issue because there’s a “limited universe” of people who need it.

More people aren’t getting arrested and added to the expungement workload due to legalization, she said.

Sen. Jacob Candelaria

However, state Sen. Jacob Candelaria, D- Albuquerque, who is an attorney, said his clients can’t afford to wait another year for lawmakers to fix the law.

He said people with a cannabis criminal record are being denied jobs, loan applications and the ability to qualify for federal or state benefits. This will continue until the expungement process is worked out by lawmakers, he said.

“There’s just kind of this idea that, ‘oh, the people will take what we give them,’ ” he said. “My clients deserve better. An injustice that persists for one day is too long.”

Candelaria said the expungement act was a missed opportunity to deliver real social and restorative justice reform to right the wrongs of the War on Drugs that caused harm and trauma to communities of color.

Expungement doesn’t automatically restore a person’s civil rights, he said. All it does is hide those records from the public eye, but law enforcement can still access them.

For example, most people who want to purchase a federal firearm will require a pardon, not an expungement, to restore their right to bear arms, he said.

When Illinois passed its cannabis legalization, it had a pardon and clemency provision that automatically restored people’s civil rights, Candelaria said. He wants New Mexico to do the same.

“With Democrats in control of the executive and both chambers of the legislature,” he said. “It really is beyond disappointing and confusing to me why we would not have included the same sort of pardon provision.”