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Hundreds of thousands of Marylanders will soon have the chance to clear their criminal records of past cannabis charges and convictions, as a new law legalizing cannabis approved by voters Tuesday will expand state expungement statutes.
The changes are all tied to Question 4, the state constitutional amendment allowing possession and use of recreational cannabis that voters approved Tuesday.
The legislature crafted the provisions to clear criminal records of simple possession of marijuana, which will no longer be considered illegal beginning July 1.
The revised criminal justice codes will pardon simple possession charges in cases where it was the only charge, and provide pathways to expungement where the charge was one of many. The law allows those currently incarcerated on simple possession charges to petition the court for resentencing and release.
In addition, the new law reduces the wait time to three years before one can apply to expunge a possession with intent to distribute charge.
Not all expungement efforts under the new rules will require a lawyer’s help, but here’s what lawyers and legislators say people can do — and in some cases, what the state will automatically do — to wipe their records clean.
Expunging records ‘where it matters’
Having a cannabis charge show up in a background check can be like “putting an extra barrier in front of you” when applying for jobs and promotions, said Chris Sweeney, a staff attorney for Maryland Volunteer Lawyers Service, a nonprofit that provides legal assistance to low-income individuals and families.
Getting arrested with a small amount of marijuana is “one of the top five most common charges” that he sees during his nonprofit’s expungement clinics, he said.
But there’s good news in the passage of Question 4: In cases where simple possession of marijuana was the only charge, the state will automatically expunge those records from its criminal records database. The Department of Public Safety and Correctional Services has until July 1, 2024, to clear those cases, and the Maryland Judiciary must clear the state’s court case search of any criminal case where possession of cannabis is the only charge, according to the new law.
“That describes literally hundreds of thousands of Maryland residents who have a criminal record,” said Montgomery County Del. David Moon, who worked on the new legislation and has worked for years to gradually expand cannabis expungement provisions.
In just the seven years prior to the state legislature relegating simple marijuana possession to a civil offense in 2014, over 226,000 charges and convictions were recorded in district and circuit courts, according to the Maryland Judiciary.
To ease the state’s record-clearing efforts, Moon, who is also a lawyer, said legislators pared down the definition of an expungement for cannabis-related charges.
Typically, an expungement means a “full record obliteration, meaning any agency that ever touched that record is going to be contacted and told to delete that record, including if there are paper records going back dozens of years,” Moon said. But for the new cannabis statutes, he said, “We’re taking them out of the place where it matters, which is the place where criminal record lookups are done.”
Moon said clearing these records en masse would be “the real first proof of concept for how to go about implementing an expungement process that can be done without any need for the defendants applying or being involved in the process.”
The state’s cannabis pardons could lay a foundation for expunging other nonviolent offenses, such as petty gambling, Moon said.
Some charges don’t need to wait on the state
If someone has a solo simple possession charge or conviction and doesn’t want to wait for the state to clear their name, they can apply immediately if the case qualifies under current provisions, according to a pro bono attorney familiar with the legislation.
“Right now a possession of marijuana charge can be expunged after four years through a petition,” said Angus Derbyshire, acting director for training and pro bono for the nonprofit Maryland Legal Aid.
Filing a petition can be done without a lawyer using the appropriate form on the Maryland Judiciary’s expungement page and, in some cases, may require a $30 fee, Derbyshire said. Free online instructional videos help filers determine which petition would apply to their case.
“As long as four years have passed from the end of the sentence, the petition can be fairly simple,” he said. ”As long as there’s not an issue in the paperwork [an expungement] could be granted without a hearing.”
Partial expungements break new ground, change system
Derbyshire said he sees more cases where a simple possession charge is one of many. And under the new law, the simple possession charge can be lifted from a person’s record, bypassing a long-standing requirement called the “unit rule.” The unit rule says that for any one charge in a case to be expunged, all charges in a case must qualify for expungement, Derbyshire explained.
“Basically, the idea is you can’t pick and choose,” he said. But this is something the new law will change. Defendants will be allowed to selectively expunge a simple possession charge from a case of multiple charges.
Allowing partial expungements will require the Department of Corrections to reprogram its Criminal Justice Information System, or CJIS. The legislature has appropriated $1.5 million in current fiscal year funds to get them started.
Derbyshire recommended applicants get a lawyer for partial expungement cases. If you cannot afford a lawyer, check your eligibility for free legal help from Maryland Legal Aid or the Maryland Volunteer Lawyers Service. Both nonprofits are ready to help people navigate the new expungement laws and already host frequent expungement clinics.
“There’s a number of people that come to us that didn’t realize ... expungement was an option for them,” Derbyshire said.
He’s hoping the new legislation and the publicity around it drives awareness and gives hope to eligible Marylanders who have lived with charges on their records for decades.
“I’m very excited for it,” Derbyshire said. “I think it’s, again, another step in the right direction.”
brenda.wintrode@thebaltimorebanner.com
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Brenda Wintrode covers state government, agencies and politics. Before joining The Baltimore Banner, Wintrode wrote an award winning series of long form investigations for Wisconsin Watch.
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