Lawmakers Weigh the Feasibility of Record Expungement Post-Cannabis Legalization

A technician inspects the leaves of cannabis plants growing inside a controlled environment. Photo by Konstantinos Tsakalidis/Bloomberg Creative via Getty.

House and Senate lawmakers weighed the equity and public safety pros and the costly, time-intensive cons of criminal record expungement if cannabis is legalized at virtual meetings this week.

“We are at the point where we have done everything that we can do technologically, and it’s going to require a manual intervention for anything else that’s required,” Maryland District Court Chief Judge John P. Morrissey told the House Cannabis Referendum and Legalization Workgroup on Wednesday morning.

Under current law, the possession of fewer than 10 grams of cannabis is a $100 civil penalty; 10 grams or more is a criminal offense punishable by up to six months in jail, a $1,000 fine, or both.

William Tilburg, the executive director of the Maryland Medical Cannabis Commission, told the Senate Finance Committee at a meeting Tuesday that, of the states that have decriminalized cannabis possession, Maryland has the lowest decriminalized possession amount.

But he also said that arrests for possession went down 11.6% from 2018 to 2019.

Morrissey laid out three routes that the legislature could take to eliminate prior cannabis charges:

  • Expungement, which completely removes information about a case from court and police records;
  • Shielding, which occurs a judge grants a request to keep records relating to the conviction of certain crimes from public view; or
  • Sealing, which happens when someone facing certain charges asks a judge to limit access to their records for a reason the judge finds compelling.

If the legislature takes the expungement route, Morrissey said the Judiciary estimated that it would take “several hundred additional clerks” to go through “millions of case records” over a “several-year period.”

Senate Finance Committee Vice Chair Brian Feldman (D-Montgomery) and Del. Jazz Lewis (D-Prince George’s) both sponsored legalization bills last year.

According to both fiscal notes, the Judiciary estimated hundreds of thousands of cases would have been eligible for expungement, which Tilburg called a “very basic estimate.”

The process of expunging even one record can take a minimum of 60 to 90 days.

To expunge a record, defendants serve petitions to the State’s Attorney’s Office, which has 30-days to object to the request to expunge. If they object, a hearing will be conducted to grant or deny the petition.

Orders must then be served to any organization that has come into contact with the case, like the Criminal Justice Information System (CJIS).

According to Rachel Sessa, the chief of staff for the secretary of the Department of Public Safety and Corrections (DPSCS), CJIS oversees the state’s computerized system that maintains state criminal identification records.

When someone is granted a court order for expungement, CJIS receives the record and a tracking and case number, and staff will search the central database to determine if the record exists.

If it’s found, Sessa said, staff will update the system to remove it and will send notice to other agencies that may contain similar information, like fingerprints and mugshots.

A letter of compliance is then sent to the court to confirm that the record has been eradicated.

In concert with CJIS, other divisions under DPSCS, like the Division of Parole and Probation and Division of Corrections, must review their systems to also ensure the expunged record has been removed.

Both Sessa and Morrissey told the House workgroup that expunging older records is much more labor-intensive because electronic records are relatively new.

The legislature has already made some changes. Earlier this year, a law went into effect that prohibits the Maryland Judiciary Case Search, the state’s public-facing court record system, from displaying a District Court case with only cannabis possession charges if it was dismissed before Oct. 1, 2014.

Tilburg said that record expungement could provide significant benefits, like higher rates of employment, better wages and reduced recidivism.

But there is still limited data about changes in public health and safety after cannabis is legalized.

Taylor Kasky, the director of policy and government affairs for the Maryland Medical Cannabis Commission, told the Senate Finance Committee that there’s a need for improved research in regard to legalization, and often, baseline pre-legalization data doesn’t exist or is inconsistent with what’s collected post-legalization.

She said it makes it hard to draw any factual conclusions.

“One of the main issues that comes up again and again when discussing the actual outcomes of legalization is that there just isn’t very good, long-term, baseline data regarding pre- and post-legalization outcomes,” Kasky said. “And so, it makes it difficult to establish any causal links between health and safety outcomes and legalization.”

In a Goucher Poll released this week, 60% of Marylanders said they approve of legalizing cannabis for recreational use.

[email protected]