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Public Defender Explains How To Get Your Marijuana Record Expunged

Emily Lang

and

Sean Carlson

Published Apr 18, 2021

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Central Courts Building

Mark Lennihan/AP/Shutterstock

Emily Lang

and

Sean Carlson

Published Apr 18, 2021

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Last month, when New York legalized recreational marijuana, many advocates and lawmakers hailed it as one of the most progressive cannabis laws in the country. That's in part because it automatically clears the criminal records of people with certain marijuana-related offenses.

The decriminalization of marijuana in 2019 allowed—for the first time in New York— a pathway for expunging any records. The process is still relatively new, and it can be riddled with confusion—especially if you are applying for a new job, navigating the federal immigration process or adjusting to the terms of criminal parole.

Gothamist/WNYC spoke with Emma Goodman, a staff attorney with the Legal Aid Society of New York, to answer some of those concerns. The interview was lightly edited for clarity.

How many New Yorkers have marijuana-related convictions, and how many of them would be cleared?

Hundreds of thousands of New Yorkers have convictions for marijuana offenses. About 200,000 already had their records expunged under the 2019 decriminalization laws, and now about 150,000 more are estimated to be eligible for expungement under this new law.

When we say marijuana convictions, that could mean a lot of different charges. Can you explain to us what type of marijuana-related convictions, specifically, would be expunged?

Anything that is no longer a crime is now eligible for expungement, which means any prior offense that involves possession of up to a pound and any prior offense that involves selling up to 25 grams is eligible for automatic expungement. That includes a couple of felonies as well as a bunch of misdemeanors.

Does this really make your convictions disappear? Like, if you were to apply for a job and somebody did a background check, would they not see those things?

Yes, almost always. It does make the convictions disappear, but they technically still exist. However, for a background check, your record should not show up. Under New York law, you do not need to disclose that you once had that conviction if your case has already been sealed or expunged.

Can you walk us through the process? Is it something that happens automatically or do you have to apply for it? And then, is there a way to check to see if your record has been expunged?

The great thing about this law is that you don't have to do anything. If you're eligible, your case will be automatically expunged. It's a computer-programming thing that happens by the state. There's nothing you have to do. You don't have to go to court.

But to check, right now, what you would have to do is go and get a copy of your rap sheet or go to the court and get a copy of your certificate of disposition saying that it's been expunged, and that is the only way you'll be able to show proof. I am working with the state to see if we can make it easier for people.

What happens in the meantime as people try to figure out the details of all of this?

What I've been told (and I'm waiting for confirmation) is that the Office of Court Administration and the Division of Criminal Justice Services—which are the two agencies that have to do the computer programing to make this happen—have already put codes into their system so that these cases won't show up on background checks, even though the case isn't technically expunged. It won't matter for you because it won't show up anymore.

Would you recommend that people get in touch with the lawyer to figure out some of this stuff?

My hope is that people won't have to get in touch with lawyers. My goal in working towards automatic expungement is to take lawyers out of the equation as much as possible. The only two reasons I would say for reaching out to a lawyer: One, if you are not a U.S. citizen, you may want to do something else to protect your rights, and you may need a lawyer for that.

And two, you can request destruction of your records under this law, and you don't need a lawyer to do that. But it's a very bad idea for most people to physically destroy the records. I would recommend that people always talk to a lawyer before they decide to make that request.

You mentioned immigration. How does it work for people who are going through the federal immigration process?

Yes, it is different. Their record will still be automatically expunged, but that might not be enough for the immigration authorities to recognize it. They may need to hire a lawyer to file what's called a 440 application. The law makes it pretty easy to do that, but you need a lawyer.

What about in a situation where, say, somebody was arrested for carrying marijuana or smoking it or marijuana was the impetus for a police stop, and then other charges came from that? What happens in those situations? Is everything that happened in that incident expunged, or is it just the marijuana charge?

It's just the marijuana charge that's expunged moving forward. It's actually illegal for the police to stop and search people based purely on the odor of marijuana. There is an interesting area of the law that is being hotly debated right now about pending cases where the smell of marijuana was the reason for the search. What about them? Do they stand, or do those cases get thrown out too? That is yet to be determined.

There's also some gray area with parole offenders, right. Can you explain that?

Some changes are very positive, in my opinion, about the parole process. The law now says that parole officers cannot mandate marijuana abstinence unless there is clear and convincing evidence that it is directly related to the offense behind the original conviction. That is rarely the case. So, for the most part, if you were on parole, they can't force you to stop smoking, and they can't violate you on parole if you were smoking.

For cases prosecuted before that law was changed, the process is more complicated. We have some parole lawyers looking into whether any incarcerated people are currently on parole violations and whether there's anything we can do to get them out, because that is a lot more complicated.

Expungement as a concept is something that you've worked on a lot. You were involved in the 2019 law, the first time New York implemented automatic expungement when it comes to marijuana. What is the next step when it comes to expungement as it applies to other crimes?

The next step is to expand expungement to things that we are not repealing. So right now, we're kind of getting into this world of expungement, and we're recognizing the value of it and the importance of people getting back to work and getting back on their feet and their perpetual punishment of having a conviction, even for marijuana, even for a misdemeanor. I think that's great and that's valuable.

But what we're not talking about is that everyone with a criminal record is faced with those same types of barriers for their entire lives. It's not something that goes away. If we are looking at expungement as to specific offenses, I really think the next logical step is to expand expungement to all kinds of offenses so that everybody can fully participate in society after their sentence is served.

Tagged

marijuana legalization

legal aid

new york state

marijuana

marijuana arrest

expungement

marijuana decriminalization

Emily Lang

Emily is a former WNYC and Gothamist producer.

Sean Carlson

Before coming to New York Public Radio, Sean worked in print, online and radio news around the mid-Atlantic region and Alaska. A New Jersey native, he holds a B.A. from the New School University in Greenwich Village and an M.A. from the Craig Newmark Graduate School of Journalism.

Gothamist is funded by sponsors and member donations

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