‘An utter failure’: Law meant to clear old convictions, including for marijuana possession, helps few

Supreme Judicial Court to hear case on expungement of old cannabis charges

Cannabis charges are only one of a number of past incidents that can be wiped clean under the law after enough time has passed.Steven Senne

When state legislators passed a criminal justice reform bill in 2018, Massachusetts residents won the ability to clear away certain criminal records — including convictions for marijuana possession and other now-legal activities — that can make it difficult to land a job, rent an apartment, and otherwise move on with life.

But three years later, only a fraction of those who are likely eligible for relief have had their records expunged.

Massachusetts Probation Service data suggest that people who were previously arrested for, charged with, or convicted of a crime submitted just 2,186 petitions to expunge their records between January 2019 and July, of which 352 were eventually approved by state judges, or about 16 percent.

And of those 352, probation officials could definitively identify only 17 related to marijuana, a statistic they first began tracking (partially) in January.

While the state could not say exactly how many people are potentially eligible for expungements, advocates insist the pool runs into the tens of thousands.

For example, there were about 68,800 civil or criminal violations for marijuana possession issued in Massachusetts from 2000 through 2013, and 8,000-plus arrests for selling or possessing marijuana each year from 1995 to 2008, according to a Cannabis Control Commission research report and an ACLU analysis. And cannabis charges are only one of a number of past incidents that can be wiped clean under the law after enough time has passed.

Critics attribute the low numbers of expungements to restrictive eligibility criteria, a lack of outreach to former defendants, disorganized state records, and a lengthy application process that ultimately gives judges wide latitude to reject even seemingly qualified requests with little explanation.

“Our expungement statute has been an utter failure,” said Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice who specializes in criminal justice policies. “We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out.”

The 2018 law bars the expungement of violent or sexual crimes, and practically any offense committed after the age of 21. And, importantly, it prohibits anyone with more than one entry on their record from obtaining an expungement, unless the other offenses are motor vehicle violations that resulted in a fine of less than $50. The only exceptions are special circumstances such as mistaken identity or conduct that is no longer illegal, as with marijuana, which together accounted for just 298 attempted petitions.

It also makes former defendants responsible for learning of the expungement program, determining their eligibility, tracking down the relevant records within the state’s patchwork of police and court filing systems, and submitting them along with a petition to the state probation department.

Probation officials reject the vast majority of expungement petitions they receive (around 79 percent) as ineligible under the law, suggesting there is widespread confusion among applicants about which charges can be cleared.

If an application is cleared by the probation department to go before a judge, the office of the district attorney who originally brought the charges is then given a chance to object. And even when prosecutors endorse a petition, judges can still reject an expungement request on the grounds it would not be in the “best interests of justice.” Attorneys for former defendants say judges have used that clause to block dozens of otherwise eligible requests.

The authors of the 2018 law counter that courts are set up to handle individual cases, not mete out justice en masse. They also note it has helped thousands of people by making it easier for them to get their records sealed, as opposed to expunged and permanently destroyed. (Sealed records are preserved and can still turn up on background checks conducted by law enforcement agencies and certain employers, such as those involved in education or child care.)

“Courts are designed to deliver individualized justice, and for better or worse, that’s how their technology is built,” said state Senator William N. Brownsberger, a lead author of the 2018 law. “When you try to apply it to implement global solutions or generate global data, unfortunately it isn’t built well to support that.”

Brownsberger added that he is most concerned about cases in which federal law enforcement officials fail to fully delete records that have been expunged at the state level.

For their part, court and probation officials said the law only requires them to process the petitions they receive. And besides, they added, the scattering of old legal records among antiquated and mutually incompatible state databases used by different agencies — a problem the 2018 law was intended to address, with little apparent progress to date — means it would be nearly impossible to identify potentially eligible former defendants or provide a more fulsome accounting of the expungements that have already been granted.

“The Trial Court does not currently have the technological capability to perform data tracking [or] an affirmative notification process for expungements,” Jennifer Donahue, a spokeswoman for the state’s court system said in a statement. She added, “it is not the role of the Trial Court to notify individuals of their rights, as we are neutral arbiters of the law.”

Still, advocates are rallying behind bills that would put Massachusetts on par with other legal marijuana states such as Connecticut, New York, New Jersey, and New Mexico that plan to automatically expunge thousands of old misdemeanor pot convictions at once.

And the issue is set to get a high-profile review in January, when the Massachusetts Supreme Judicial Court is scheduled to hear an appeal of a rejected expungement petition.

According to the petitioner’s attorney and Naples-Mitchell, who is filing an amicus brief in the impounded case, the appeal concerns a request to expunge several convictions for possessing small quantities of pot that was denied by a Boston judge — despite an endorsement from the Suffolk County District Attorney, whose office originally brought the charges more than 15 years ago.

“Never in my life did I think I’d bring an expungement case to the Supreme Judicial Court,” said Pauline Quirion, the lead attorney for Greater Boston Legal Services, which conducts expungement clinics and represents the petitioner in the case. “Taking advantage of this [law] has turned out to be much harder than I ever expected.”

Quirion and others said the low number of attempted expungements proves the state has not done enough to reach out to Black, brown, and low-income communities that have for decades been subjected to disproportionately high arrest rates. That means many people with eligible marijuana and other convictions are probably unaware they even have the right to seek an expungement, or to at least seal their records.

The Massachusetts Executive Office of Public Safety and Security was mandated by the 2017 marijuana legalization law to conduct a public awareness campaign around sealing old marijuana records. But law enforcement officials have yet to fulfill the requirement, saying they’ve instead focused on a campaign warning against stoned driving.

Officials at the public safety office declined to be quoted, but blamed their failure to launch the campaign on the coronavirus pandemic. They said it would still debut eventually, but did not provide a time frame.

“The onus ends up being on the individual to know about [the expungement] program and take action,” Quirion said. “The tragedy for a lot of folks is that we usually see them after the fact, when they’ve lost their dream job or something.”

Several bills have been proposed that would smooth the process of seeking expungements, including one authored by state Senator Adam Gomez that would direct probation officials to automatically grant expungements for eligible marijuana-related offenses.

“It is unthinkable to me that in a state where voters legalized marijuana, we are still fighting at a legislative level to expunge these decriminalized offenses in a timely manner,” Gomez, a Democrat from Springfield, said.

Another legislative proposal would require the state to notify former defendants whose records may be eligible for expungement. State Senator Sonia Chang-Díaz, a co-sponsor of the bill who is running for governor, said she would like to see Massachusetts “go further and automatically expunge convictions for all eligible records.”

“All Bay Staters that our failed policies have harmed deserve this much-needed clean slate,” the Boston Democrat said. “They should not have to come begging for justice.”