Public Defender Explains How To Get Your Marijuana Record Expunged

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Final month, when New York legalized leisure marijuana, many advocates and lawmakers hailed it as one of the vital progressive hashish legal guidelines within the nation. That is partially as a result of it robotically clears the legal information of individuals with sure marijuana-related offenses.

The decriminalization of marijuana in 2019 allowed—for the primary time in New York— a pathway for expunging any information. The method continues to be comparatively new, and it may be riddled with confusion—particularly if you’re making use of for a brand new job, navigating the federal immigration course of or adjusting to the phrases of legal parole.

Gothamist/WNYC spoke with Emma Goodman, a employees legal professional with the Authorized Assist Society of New York, to reply a few of these considerations. The interview was frivolously edited for readability.

What number of New Yorkers have marijuana-related convictions, and what number of of them can be cleared?

A whole lot of 1000’s of New Yorkers have convictions for marijuana offenses. About 200,000 already had their information expunged underneath the 2019 decriminalization legal guidelines, and now about 150,000 extra are estimated to be eligible for expungement underneath this new regulation.

After we say marijuana convictions, that might imply loads of totally different prices. Are you able to clarify to us what sort of marijuana-related convictions, particularly, can be expunged?

Something that’s not a criminal offense is now eligible for expungement, which suggests any prior offense that includes possession of as much as a pound and any prior offense that includes promoting as much as 25 grams is eligible for computerized expungement. That features a few felonies in addition to a bunch of misdemeanors.

Does this actually make your convictions disappear? Like, in case you have been to use for a job and someone did a background test, would they not see these issues?

Sure, nearly all the time. It does make the convictions disappear, however they technically nonetheless exist. Nevertheless, for a background test, your report mustn’t present up. Beneath New York regulation, you do not want to reveal that you just as soon as had that conviction in case your case has already been sealed or expunged.

Are you able to stroll us by means of the method? Is it one thing that occurs robotically or do you need to apply for it? After which, is there a strategy to test to see in case your report has been expunged?

The beauty of this regulation is that you do not have to do something. In the event you’re eligible, your case might be robotically expunged. It is a computer-programming factor that occurs by the state. There’s nothing you need to do. You do not have to go to court docket.

However to test, proper now, what you would need to do is go and get a replica of your rap sheet or go to the court docket and get a replica of your certificates of disposition saying that it has been expunged, and that’s the solely method you can present proof. I’m working with the state to see if we will make it simpler for individuals.

What occurs within the meantime as individuals strive to determine the small print of all of this?

What I have been instructed (and I am ready for affirmation) is that the Workplace of Court docket Administration and the Division of Felony Justice Companies—that are the 2 businesses that need to do the pc programing to make this occur—have already put codes into their system in order that these instances will not present up on background checks, though the case is not technically expunged. It will not matter for you as a result of it will not present up anymore.

Would you suggest that individuals get in contact with the lawyer to determine some of these things?

My hope is that individuals will not need to get in contact with attorneys. My aim in working in direction of computerized expungement is to take attorneys out of the equation as a lot as attainable. The one two causes I might say for reaching out to a lawyer: One, if you’re not a U.S. citizen, chances are you’ll need to do one thing else to guard your rights, and chances are you’ll want a lawyer for that.

And two, you may request destruction of your information underneath this regulation, and you do not want a lawyer to try this. However it’s a really dangerous concept for most individuals to bodily destroy the information. I might suggest that individuals all the time discuss to a lawyer earlier than they resolve to make that request.

You talked about immigration. How does it work for people who find themselves going by means of the federal immigration course of?

Sure, it’s totally different. Their report will nonetheless be robotically expunged, however that may not be sufficient for the immigration authorities to acknowledge it. They might want to rent a lawyer to file what’s known as a 440 utility. The regulation makes it fairly straightforward to try this, however you want a lawyer.

What about in a scenario the place, say, someone was arrested for carrying marijuana or smoking it or marijuana was the impetus for a police cease, after which different prices got here from that? What occurs in these conditions? Is all the pieces that occurred in that incident expunged, or is it simply the marijuana cost?

It is simply the marijuana cost that is expunged shifting ahead. It is really unlawful for the police to cease and search individuals based mostly purely on the odor of marijuana. There’s an attention-grabbing space of the regulation that’s being hotly debated proper now about pending instances the place the scent of marijuana was the explanation for the search. What about them? Do they stand, or do these instances get thrown out too? That’s but to be decided.

There’s additionally some grey space with parole offenders, proper. Are you able to clarify that?

Some modifications are very optimistic, in my view, in regards to the parole course of. The regulation now says that parole officers can not mandate marijuana abstinence except there may be clear and convincing proof that it’s straight associated to the offense behind the unique conviction. That’s hardly ever the case. So, for essentially the most half, in case you have been on parole, they cannot power you to give up smoking, and so they cannot violate you on parole in case you have been smoking.

For instances prosecuted earlier than that regulation was modified, the method is extra difficult. We now have some parole attorneys wanting into whether or not any incarcerated individuals are at present on parole violations and whether or not there’s something we will do to get them out, as a result of that’s much more difficult.

Expungement as an idea is one thing that you’ve got labored on loads. You have been concerned within the 2019 regulation, the primary time New York applied computerized expungement on the subject of marijuana. What’s the subsequent step on the subject of expungement because it applies to different crimes?

The following step is to develop expungement to issues that we aren’t repealing. So proper now, we’re form of entering into this world of expungement, and we’re recognizing the worth of it and the significance of individuals getting again to work and getting again on their toes and their perpetual punishment of getting a conviction, even for marijuana, even for a misdemeanor. I believe that is nice and that is invaluable.

However what we’re not speaking about is that everybody with a legal report is confronted with those self same varieties of limitations for his or her complete lives. It isn’t one thing that goes away. If we’re taking a look at expungement as to particular offenses, I actually suppose the following logical step is to develop expungement to all types of offenses so that everyone can absolutely take part in society after their sentence is served.

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