Pot Luck

One of the glaring omissions in New York criminal law had been the lack of an expungement law, a means by which someone could get an ancient conviction off his record so that it would no longer affect everything from jobs, licensure, deportation, credit and even voting. After all, what you did at 17 really doesn’t mean much when you’re 47 and have led a law-abiding life every since. But in New York, it didn’t matter. One you were convicted, you were convicted forever.

That’s now been changed with regard to marihuana (which is the New York statutory spelling; I didn’t make the law) with the enactment of Penal Law Article 222, which legalized personal recreational use quantities of weed and the Marihuana Regulation & Taxation Act (MRTA), which mandated expungement for low level pot convictions. No other crime, but just marihuana. The New York Times says the law contains a typo, and that typo is preventing some people from being relieved of the burden of conviction.

Legalization offered offenders a clean slate by wiping convictions from their records, a crucial step toward turning their lives around by making it easier to apply for a job or loan, rent an apartment or obtain a professional license. Expungement was a pillar of the law’s promise to reverse the consequences of the war on drugs.

The 2021 law expunged 107,633 convictions, and a 2019 law that decriminalized small amounts of marijuana cleared 202,189 more, state justice officials said.

A great many defendants have been relieved of the burden of conviction for pot already. Lest anyone forget, if they were convicted of other offenses, that would not be expunged, so it’s not as if they get a free ride on crime otherwise. Also, they get neither the time nor fine back that was imposed as a sentence, so while they won’t have to shoulder the conviction in perpetuity, they were punished for committing the offense, even if it’s no longer deemed offensive.

Those convictions were largely for lower-level offenses. The situation is more fraught for people like Mr. Volkman who have felony convictions for large quantities of cannabis.

Therein lies the thrust of the article, that because of a typo, drug war “victims” like Volkman are left behind.

Furthermore, the omission of a single digit in the legalization legislation — the Roman numeral i — has precluded felons from filing a straightforward form to receive a conviction reduction. The mistake remains uncorrected.

“It’s literally a typo,” Emma Goodman, a Legal Aid Society staff attorney, said of the error, which has prompted eye-rolling jokes about government dysfunction.

That sounds terrible, if the lege enacted a law that intended to mandate expungement of these felony marihuana convictions, but a typo got in the way.

“Everyone in Albany understands it’s just a mistake, and there’s not an easy way to fix it,” she added.

But what is the typo? Why is the problem? And why, if it’s merely a typo, can’t the legislature just correct the typo that “everyone” understands is just a mistake?

The upshot is that instead of filing the form, felons seeking conviction reductions must have a legal motion drafted and submitted in the county court where they were convicted. The district attorney’s office that prosecuted the original crime can weigh in before the motion goes before the judge who imposed the conviction.

What goes unmentioned is that this isn’t about low level possession of marijuana cases, but sale and possession with intent to sell. What in the old days was called drug dealing. And what happened with Volkman?

He was arrested in 2019 at 22 with seven pounds of marijuana and $65,000 at his home in Glens Falls.

Under a plea agreement, Mr. Volkman, who goes by Derick, served five months in county jail but then violated his probation by failing drug tests for marijuana, which he said he had smoked since he was 13 to settle his mood and anxiety.

After being arrested for driving under the influence, he found himself resentenced on his original cannabis charges even as the state was pledging to give priority to marijuana offenders in awarding dispensary licenses.

Mr. Volkman said he hoped to eventually work in the legal cannabis industry and hoped that his drug charge would not hobble him professionally.

Perhaps the problem here isn’t a typo, but that his offense was possession of a substantial amount, far beyond personal use, and he possessed it to sell it? That the drug being sold was weed doesn’t make the seller less of a dealer, The question remains whether the legislature intended to expunge the records of defendants convicted of felonies for possessing large quantities of marihuana with intent to sell?

On the one hand, the low level guys smoking weed had to get it from somewhere. For those without a green thumb, there was always the street corner. Was it wrong to be the guy on the corner supplying what others demanded? On the other hand, it’s not as if they were unaware that this might be a wee bit illegal, and yet did it anyway for financial benefit. Even though it’s still weed, does that distinction take them outside the realm of those given a reprieve from the drug war?

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