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Mass. still has no clue how many people’s marijuana records should be cleared

Andrea Cabral, former Suffolk County sheriff and now chief executive of a cannabis retailer, said the issue of how to repair the damage of criminalization “is a public policy question, not an individual one.”
Andrea Cabral, former Suffolk County sheriff and now chief executive of a cannabis retailer, said the issue of how to repair the damage of criminalization “is a public policy question, not an individual one.”(Craig F. Walker/Globe Staff)

With marijuana now legal in Massachusetts, thousands of people convicted of pot possession can have their records cleared, removing roadblocks to jobs, housing, adoption, and loans.

To that end, lawmakers last year created an option, as part of a broad criminal justice overhaul, for people to have their cannabis records expunged as if they never existed.

So how many people have had their records wiped clean? The state can’t exactly say, but the number is clearly very low.

Since the new system started six months ago, only 12 convictions — out of 219 requests — were expunged for all types of crimes.

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Now, a growing chorus of progressive prosecutors and civil rights leaders is calling for the government to clear records in bulk for pot possession, a crime that was disproportionately enforced in black and Hispanic communities for decades.

The push has gained momentum nationwide. Prosecutors in Los Angeles, Seattle, San Francisco, and Chicago have taken steps to wipe thousands of old marijuana cases in their cities — en masse, without those affected having to file anything.

“Hell, other states are doing this automatically,” said Michael Cutler, a Northampton cannabis attorney. “That’s a far better example for achieving the intent of these remedies rather than sitting back and waiting for people to figure it out for themselves.”

A bill recently filed in the Massachusetts House by Representative Chynah Tyler, a Democrat from Roxbury, would require the state to erase all past pot possession cases. That would be a significant change from the current process, in which a person files a court petition, which can require time, persistence, a hearing, and possibly a lawyer’s expertise.

“Many people in my community are still dealing with the impact of the war on drugs,” Tyler said. “Automatic expungement does away with the difficulties anyone might have with the process.”

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Critics point to the tiny number of expungements as evidence that the state has failed to inform affected communities about the option to expunge marijuana charges, which started in October. State law requires the governor’s executive office of public safety and security to launch a public awareness campaign educating eligible people about sealing records, but it has yet to do so. A spokesman, Felix Browne, said the office first focused on discouraging stoned driving.

Law enforcement groups defend the current system. They say judges should consider each person’s distinct circumstances before ruling whether to destroy records, because some marijuana possession convictions were pleaded down from more serious charges.

“It’s legal now — that doesn’t mean that 10 years ago, when they violated the law, that shouldn’t become part of their record,” said Walpole police Chief John Carmichael, a member of the state’s cannabis advisory board.

While criminal records do serve a purpose, former Suffolk County sheriff Andrea Cabral said nonviolent drug crimes should be viewed through the lens of well-documented racial disparities which scarred generations.

“The war on drugs was never more than a war on people who used drugs, particularly people of color,” said Cabral, now CEO of cannabis retailer Ascend Mass. Now that pot is a profit-making industry, Cabral said, the issue of how to repair the damage of criminalization “is a public policy question, not an individual one.”

One Middleborough man, 43, was charged in 2015 with growing too many marijuana plants, which he said he used for insomnia and to help cancer patients. The resulting visits from the Department of Children and Families posed a stressful threat, he said, for both him and his young daughter. He wants to apply to clear his record.

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“I don’t have anything bad on my record besides this,” said the man, who spoke on the condition of anonymity because he wants to put the case behind him. “It makes me look like a drug dealer.”

People who were convicted of having cannabis when that was a crime have two options: have their cases sealed, which hides the record from the public but not the government, or have them expunged, which destroys the case permanently.

It is unclear how many people with marijuana records are eligible for either remedy.

More than 22,250 convictions of all kinds were sealed from public view in the past four years, but the Massachusetts Probation Service doesn’t break down how many of those were for marijuana.

The number of pot possession cases has plummeted since 2008 when it became a civil penalty to have small amounts of marijuana. But hundreds were still convicted later of having more than the permissible amount. Records show that 14,400 people were convicted of possessing a Class D drug, which usually means marijuana, from 2002 through 2013.

Racial disparities have persisted. In the past five years, 50 percent of the people charged in Suffolk County with Class D possession were black, records show, in a county where 22 percent of the population is black.

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Lawyers who work to clear records say there are likely still plenty of people suffering housing or job rejections who are unaware that they’re eligible to have their pot records erased.

“Sometimes it feels like shoveling sand against the tide,” said Pauline Quirion, lead attorney at Greater Boston Legal Services, which helps seal the records of 600 to 800 low-income people each year. She estimated about 30 percent have marijuana records. “It’s the cycle of poverty — you have this record, and you’re trapped in poverty until you can eventually seal it.”

Quirion expected a rush of marijuana expungement requests after the new system began, but that hasn’t happened.

Some affected people may have already sealed their records, she said, so expungement may not feel necessary unless they want to work in law enforcement, banking, education, or the federal government. Another possibility: They were also convicted of more serious crimes, so the pot charge is the least of their worries.

One mother, whose 16-year-old son was convicted of having pot at Newton North High School in 2007, said she wished his charge could have been expunged. All juvenile records are sealed, but that didn’t help. He was rejected from the military, his lifelong dream, leaving him severely depressed.

“It ruined his life,” said the woman, 64, who requested anonymity to protect her son’s career prospects. “All he wanted to do was serve his country.”

San Francisco District Attorney George Gascón announced last year that his office would take responsibility to clear people’s pot records. That prompted a technology nonprofit, Code for America, to offer to help automate the process there and in Los Angeles, Sacramento, and San Joaquin counties.

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Previously, just 3 percent of those eligible for pot-record clearance in California sought it, said Evonne Silva, criminal justice director at Code for America. Now, 8,000 charges have been wiped in San Francisco, and the group plans to clear at least 54,000 more in California and 250,000 nationwide this year.

“This is really a historic opportunity to turn record clearance and access to relief from a far-off dream, a wishful intent but never-implemented reform, into reality for millions of people across the country,” Silva said.

In California, Silva said, district attorneys have considerable power because courts must grant requests if prosecutors don’t object.

Massachusetts law differs. Suffolk District Attorney Rachael Rollins, who has pledged to stop prosecuting drug possession and possession with intent to distribute cases, said she has no legal authority to seek expungements on anyone’s behalf.

“That right lies exclusively with the charged individual,” Rollins said, adding that she commends Tyler’s efforts in the Legislature. The most she can do now, she said, is to keep informing people of their options.

For more information on clearing cannabis cases, visit www.masslegalhelp.org/cori.


Naomi Martin can be reached at naomi.martin@globe.com. Follow her on Twitter at @NaomiMartin.