THE 2018 criminal justice reform law let old marijuana convictions be expunged. But by and large, it hasn’t done much. A 2021 Boston Globe story called that provision an “utter failure,” noting that only a fraction of those with marijuana convictions had petitioned for expungement.
One reason may be that most people convicted of marijuana offenses were convicted of dealing or additional unrelated charges. A first-time offense of smoking a joint would generally be dismissed even pre-legalization.
But Josh Daniels, an attorney representing the Massachusetts Association of Criminal Defense Lawyers in a recent court case on the issue, said a problem has been that judges were slow to adapt. “A lot of judges have been reticent to grant expungements, perhaps because the law for expungement is still new,” Daniels said.
Now, both the Legislature and the Supreme Judicial Court are forcing judges’ hands.
The 2018 criminal justice reform law let criminal records be expunged if the underlying conduct was no longer a crime – the main application being possession of small amounts of marijuana. The law, however, gave judges discretion in deciding whether to grant an expungement based on “what is in the best interests of justice.”
The new marijuana equity law that Gov. Charlie Baker signed in August removed that judicial discretion and said a court “shall” within 30 days of receiving a petition order the expungement of a record for marijuana possession, cultivation, or distribution of an amount of marijuana that has been decriminalized. If the petitioner or district attorney requests a hearing, a judge must make written findings of fact why they are granting or denying the petition.
A Supreme Judicial Court ruling issued Thursday related to a judge’s interpretation of the 2018 law.
K.W., as the petitioner is referred to in court documents, sought to expunge criminal records stemming from two arrests involving possession of small amounts of marijuana. In 2003, K.W. was a passenger in a car that was stopped for traffic violations, and a pat frisk found a small plastic bag of marijuana on him. That case was dismissed. In 2006, K.W. was stopped for speeding. He gave the police another person’s driver’s license and was found to be driving with a suspended license and in possession of two bags of marijuana. He pleaded guilty to three charges, including marijuana possession.
The case records have been sealed. But after the Legislature passed the criminal justice reform law, K.W. petitioned for expungement so the records would be eliminated, not just hidden from public view.
Prosecutors did not object. But a Boston Municipal Court judge denied both requests for expungement, finding that expunging the records was not “in the best interests of justice.”
The SJC, in a 28-page unanimous decision written by Justice Serge Georges, overruled the Boston judge, saying the judge abused his discretion.
While the Legislature allowed some judicial authority, Georges wrote that “should not be understood as a grant of broad authority.” Instead, he said, a judge has discretion to account for “rare countervailing factors that the Legislature could not anticipate with precision.”
The court concluded that people seeking to have records expunged for marijuana offenses that have since become legal “are entitled to a strong presumption in favor of expungement,” and petitions may be denied “only if a significant countervailing concern is raised in opposition to the petition.”
Georges added: “If no substantial countervailing concern is raised, judges must grant the petition for expungement; if a concern is raised, judges who chose to deny motions for expungement in response to those concerns must make written findings as to the basis of their decisions.”
The court clarified that expungement should be done on a record-by-record basis, so if someone was convicted of a traffic violation and marijuana possession, documents related to the traffic stop could be kept in the record but redacted to remove references to marijuana.
The court ruling did not mention the 2022 law change. Legal experts at the Senate Ways and Means Committee say the new law makes the decision largely moot, since the SJC clarified the 2018 law, but the Legislature has written a new law governing marijuana-related expungements. Under the new law, as long as a petition is filed and the cannabis offense has been decriminalized, the judge must expunge the record.
But Katy Naples-Mitchell, who filed a brief in the case as a staff attorney at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said the decision is still relevant. The new law will not take effect until November, so the ruling will help people filing petitions before then.
Another issue is the language of the new law is ambiguous since it says a judge “shall” grant the petition but later says a judge can grant or deny it after a hearing. Naples-Mitchell worries some judges will interpret that in a way that gives them discretion.