SJC tells judges to grant marijuana expungements

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 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.”

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. 

SHIRA SCHOENBERG

FROM COMMONWEALTH

Oath Keepers named: Two Massachusetts political players – one a former Barnstable County commissioner who running to regain his old seat and the other a member of the Wilbraham Republican Town Committee – show up in a leaked database listing members of the anti-government group Oath Keepers, according to an analysis by the Anti-Defamation League. The league says showing up in the database is not proof of participation or membership in the Oath Keepers. There were 550 Massachusetts residents in the database, but the Anti-Defamation League released the names of only elected officials. 

– Ronald Beaty of West Barnstable couldn’t be reached for comment, while David Sanders of Wilbraham said he has had no connection with the Oath Keepers since 2009, when he attended a rally and swore an oath to uphold the Constitution. Read more.

Waste bans: Environmental advocacy groups say their analysis shows the state is burning or burying materials that could be recycled. The groups estimate 40 percent of the waste going into landfills and incinerators could be diverted if existing waste bans were enforced. Read more.

OPINION

Legislative dysfunction: John Lippitt of Progressive Democrats of Massachusetts says the end-of-session cram is no way for the Legislature to conduct its business. Read more.

FROM AROUND THE WEB

BEACON HILL

Newly elected Salem state Rep. Manny Cruz looks back at the mentors who helped propel him to his win this week. (Salem News)

MUNICIPAL MATTERS  

Hampden County DA Anthony Gulluni, Holyoke Mayor Joshua Garcia, and Police Chief David Pratt try to reassure residents after Holyoke’s fifth murder of 2022. (Daily Hampshire Gazette)

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WASHINGTON/NATIONAL/INTERNATIONAL

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Police in Las Vegas arrest a county official in connection with the stabbing murder of a Las Vegas Review-Journal reporter. (NPR)

The Michigan Supreme Court gives the go-ahead for voters in November to decide whether abortion protections should be added to the state constitution. The court held that irregular spacing on some of the ballot petitions should not disqualify the question, with one concurring opinion calling the argument of opponents “a game of gotcha gone very bad.” (New York Times)

ELECTIONS

A Berkshire Eagle editorial applauds the victory of Timothy Shugrue in Democratic primary for  Berkshire DA and that of Thomas Bowler in the primary for sheriff, but laments the tone of the campaigns, particularly the comments of current DA Andrea Harrington and sheriff challenger Alf Barbalunga. 

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Maura Healey leads Geoff Diehl by 18 points in a new Emerson College/WHDH poll. (MassLive)

Former Republican governor Jane Swift endorses Republican Anthony Amore for auditor but no other GOP candidates. (MassLive)

BUSINESS/ECONOMY

Prominent developer David Ward defaults on two mortgages for high-end properties in Pittsfield, which will mean the projects will be sold at auction. (Berkshire Eagle)

Massachusetts Gaming Commission regulators say it will take some time to put the rules governing sports betting in place. (MassLive)

EDUCATION

College of the Holy Cross releases an investigative report into the factors that enabled faculty members to engage in decades of sexual misconduct. (Telegram & Gazette)

TRANSPORTATION

The bigger test of the MBTA’s Orange Line shutdown arrived yesterday, with the first day of classes for Boston Public Schools students, and things got more gummed up, as expected. (Boston Globe) 

MBTA officials hear concerns about unsafe conditions at a Gloucester train crossing. (Gloucester Daily Times)

ENERGY/ENVIRONMENT

A judge delivers a tough blow to General Electric, ruling it infringed on the patent rights of another company in developing the huge wind turbine the company planned to use in its Vineyard Wind I project off the coast of New Bedford. (New Bedford Light) 

CRIMINAL JUSTICE/COURTS

The State Republican Party remains embroiled in a court fight over its business operations. (Salem News)

MEDIA

The University of California Berkeley graduate school of journalism is launching a $25 million state-funded program to subsidize 40 fellows a year to work in newsrooms in communities in desperate need of local news coverage.

Chris Krewson of Lion Publishers sends a letter to his members explaining why legislation in the United States and Canada to help news businesses will not help local news.

New Jersey-based Cherry Road Media buys four weekly newspapers in central Massachusetts from Gannett. (Media Nation)

PASSINGS

Barbara Ehrenreich, best known for her searing account of the indignities of low-wage work in the US, Nickel  and Dimed, died at age 81. (The Baffler)