“Court litigation will be necessary to iron out the ambiguities. We can try and fix the issues with new legislation, but the House and Senate are limited in what we can do because Amendment 3 is a constitutional amendment and not just new legislation.”
By Rebecca Rivas, Missouri Independent
Thursday is a big day for Missouri.
It’s the day the constitutional amendment legalizing recreational marijuana use goes into effect, allowing Missourians 21 or older to legally buy or possess up to three ounces of marijuana and grow up to six marijuana plants.
It’s also the day Missouri’s Department of Corrections says 565 people who are on probation or parole for felony marijuana offenses will start to have their records expunged.
Starting Thursday, Missouri’s constitution requires courts to vacate the sentences of people currently on probation or parole for possessing or selling three pounds or less of marijuana, barring the exceptions of DUIs and distributing to a minor.
But Thursday’s just the beginning.
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— Missouri Department of Health & Senior Services (@HealthyLivingMo) December 8, 2022
A huge selling point for those who voted for marijuana legalization, which appeared on the ballot last month as Amendment 3, was the automatic expungement provision—meaning people who have already served their sentences for past charges don’t have to petition the court and go through a hearing to expunge those charges from their records.
The courts will locate their records and make it as if their past marijuana charges never existed. All marijuana-related misdemeanors must be expunged by June 8 and felonies by December 8, 2023.
“If they have that scarlet letter or that mark on their record, it puts them out of opportunities that they can get for safer housing, for better employment, for education opportunities,” said Justice Gaston, leader of the Kansas City advocacy group Reale Justice Network and who served as spokesperson for the pro-Amendment 3 campaign, called Legal Missouri.
Yet experts in expungement law say people shouldn’t set high hopes the courts will be able to meet the deadlines outlined in Amendment 3.
Here’s the main problem: What’s written in Amendment 3 doesn’t match up with how people are charged with marijuana violations under the state’s criminal code.
Misdemeanors are likely the easiest to expunge because they involve 35 grams or less (three pounds is 1,200 grams). The state doesn’t yet have an estimate on how many people will be impacted in the end. But for some context, there have been 9,000 misdemeanor charges filed statewide since January 1, 2020 that resulted in convictions, according to numbers provided by a spokesperson for the Missouri Supreme Court.
Felonies will be much more tricky to expunge, legal experts say. More than 35 grams falls into felony territory, and felony possession charges lump together all types of drugs.
So a court clerk will have to manually pull up court records to see if the felony was for possession of marijuana and not, say, heroin—and if the person had under three pounds.
The courts have asked state lawmakers for a supplemental budget of $2.5 million to pay for overtime for 500 court clerks statewide to go through these files, as well as two IT contractors and their equipment costs. But it’s unlikely that money will be appropriated for months.
Scott Pierson, a criminal defense attorney in Springfield, considers himself an “extremely optimistic person.” As a leader of a free expungement clinic in Springfield and facilitator of statewide workshops on expungement law, Pierson says he wants to see the process succeed.
“Being realistic about this is that we’re tasked with setting up a framework for recognizing something in the course of a month that has been prosecuted on different levels in different ways in the last 50 years,” Pierson said. “It sets a really high burden for the courts.”
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— Missouri Department of Health & Senior Services (@HealthyLivingMo) December 8, 2022
Courts lead the way
Critics say the way the expungement provision was worded will inevitably cause confusion and delay, which could have been avoided. Even some of Amendment 3’s supporters say they would have written the provision differently, particularly relating to the short deadlines for courts to get it done.
Under Amendment 3, each circuit court is responsible for organizing this process for their own jurisdictions.
Presiding Judge Michael Stelzer of the 22nd Circuit Court in the City of St. Louis says he’s been in meetings with state court officials and his team to try to come up with a way to identify eligible cases since Amendment 3 was passed.
They also must devise a system to notify the record keepers as well as the individuals that the convictions are now expunged.
“Easier said than done,” Stelzer joked in an interview with The Independent last week.
He’s hoping to get some help from the Missouri Supreme Court and the Office of State Court Administration—including money for overtime hours and assistance navigating digitized records to get a list of eligible cases together.
“If we get a little help, I think it can be done,” he said. “Certainly, those are sort of short deadlines. We’ll do our best to comply with it.”
The task will be much more challenging if the state legislature doesn’t appropriate the funds in an expedited manner. The supplemental budget is typically not approved by lawmakers and signed by the governor until mid-April or early May.
“We will do the best we can at that point,” he said in response to a possible delay in funding. “But there’s no denying that this is going to take quite a bit of manpower, just to identify, put in place the orders and then enter those orders.”
For fiscal year 2024, the courts have asked for $4.54 million to pay for the temporary staff and overtime hours needed “to meet the timelines for expungement of records,” as well as for two IT contractors for one year.
Approving funds is not the only thing legislators need to do to make the process go smoothly, said state Rep. David Evans, a Republican from West Plains who serves on the State Court Automation Committee.
The specifics on the expungement process in Amendment 3, he said, are “unclear.”
“Court litigation will be necessary to iron out the ambiguities,” Evans said. “We can try and fix the issues with new legislation, but the House and Senate are limited in what we can do because Amendment 3 is a constitutional amendment and not just new legislation.”
Stephen Sokoloff, general counsel for the Missouri Office of Prosecution Services, is among the chorus of people saying that the deadline to get expungements done is “ridiculously short.”
The expungement responsibility lies on the courts’ shoulders, but he said prosecutors are hearing the rumblings that it’s going to be a “nightmare.”
“I’ve heard little bits here and there that the IT people are scrambling trying to figure out how to write some code and stuff to be able to sort some of these things,” Sokoloff said.
However, he said it’s going to require a good amount of hand reviewing the files.
Stelzer is also hoping the Department of Corrections will provide a list of people on parole or probation.
A spokesperson for the department said if courts ask for the information, it will be provided. By law, the department must have a court order to release anyone from supervision.
People who are currently incarcerated on marijuana charges must submit a petition to have their charges expunged.
The department estimates about 27 people who are currently incarcerated in state prisons would be eligible for relief under the new law.
“That’s out of about 23,500 people currently in Missouri prisons,” a DOC spokeswoman told The Independent last week.
Under the law, their petitions must be heard and expunged by March 8, if a judge deems them eligible.
St. Louis is among the cities, along with Jackson County, that hasn’t been prosecuting low-level marijuana charges that aren’t connected to other offenses for several years. Out of the 538 people currently held in St. Louis city jails, none were eligible for release under Amendment 3, according to a city spokesperson.
While there may be delays, expungement advocates say the “bright side” is that Amendment 3 is bringing to light challenges that have long existed in the state’s current expungement process—among the biggest being the antiquated court management system.
In many of the smaller counties, the records, especially for ordinance violations, aren’t digitized.
Sydney Ragsdale, an attorney for the University of Missouri-Kansas City Expungement Clinic, has been working on a case involving a woman who had a 30-year-old marijuana charge in a smaller county.
The expungement petition process requires that they have the court record. However, the circuit court said they didn’t have any record of the case.
“She has this conviction that [Department of Corrections] is going to keep reporting, but the court can’t find her record to order it expunged,” she said. “That’s a big concern.”
The clinic was able to find a news article about the charge in an archived newspaper database, and the court finally recognized that they have the case.
“If we wouldn’t have done that, I can’t really imagine how they would have found her case and expunged it,” she said. “It’s a testament to how digitizing the records would help.”
Amendment 3 sets up “a pretty tall order” for the courts, she said, and not a lot of time to do it.
“It’s often hard for courts to even find the records from old cases or for whatever reason,” she said. “And so if they can’t find records, it’ll be hard for them to be expunged. So there’s a decent possibility that a lot of people won’t see their records expunged when they’re supposed to see them expunged.”