Massachusetts “Fails” Cannabis Arrest Expungement

Expunging past convictions for low-level or non-violent marijuana arrests has largely emphasized social justice and equity. The gap between saying and doing seems impossible in some states. 

In 2018, Massachusetts state legislators passed a criminal justice reform bill allowing eligible residents the ability to clear away some criminal records — including convictions for marijuana possession and other now-legal activities. Despite legalizing marijuana three years ago, Massachusetts has still expunged only a tiny percentage of past marijuana convictions.

The law prohibits the expungement of sexual or violent crimes, and most offenses committed past age 21. It also prohibits anyone with more than one entry on their record from obtaining an expungement. 

Exceptions include mistaken identity or conduct that is no longer illegal (i.e., marijuana), which together accounted for just 298 attempted petitions.

Of the more than two-thousand petitions filed to expunge past convictions, state judges approved approximately 352 – a mere 16 percent. 

Of those 352 approvals, probation officials identified only 17 related to marijuana. Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, called it an “utter failure.”

Critics blame the low numbers of expungements on a lack of outreach to former defendants, restrictive eligibility criteria, disorganized state records, and a lengthy application process that ultimately gives judges wide latitude to reject, with little explanation, even seemingly qualified requests.

Former defendants are responsible for determining their eligibility, tracking their relevant records within the state’s patchwork of filing systems, and submitting them along with a petition to the state probation department.

“We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out,” Naples-Mitchell said in an interview with the Boston Globe.

Much of the problem stems from a general lack of knowledge or misunderstanding of the eligibility rules. 

In Massachusetts, only convictions for violations that are now no longer crimes, possession of fewer than two ounces or less of cannabis, are eligible for expungement. The change does not apply to federal crimes or crimes from other states. According to the Globe, probation officials say just under 80% of expungement requests are ineligible under the law. Others are simply unaware of the law entirely.

“People are not really aware of their right to seek expungement, let alone how to navigate the process for how to do it,” Daniel Medwed, a legal analyst and Northeastern University law professor, said in an interview with Boston’s NPR station.

The process requires specific and complicated steps. Fill out a petition for expungement at Mass.gov, then file the petition in the court where convicted. There is no filing fee. If denied a petition, people can request a hearing.

Even if the probation department clears an application before a judge, the district attorney’s office who initially brought the charges is given a chance to object. And despite prosecutors’ endorsement of a petition, judges can still reject an expungement request on the grounds it is not in the “best interests of justice.” Many defending attorneys claim judges too often use that vague clause to block dozens of otherwise eligible requests.

State Senator William N. Brownsberger was the lead author of the 2018 law. He believes the law is serving its purpose within the system’s boundaries.

“Courts are designed to deliver individualized justice,” Brownsberger said in an interview with Boston Globe. “When you try to apply it to implement global solutions or generate global data, unfortunately, it isn’t built well to support that.”

Defenders of the law point to the thousands of people whose records were sealed – not expunged or destroyed – as a sign of success. But, sealed records are preserved and can still turn up on background checks conducted by law enforcement agencies and employers involved in education or child care. 

With an expungement, the conviction essentially disappears. A person can honestly say they have “no record” of this particular case. 

An expungement is a powerful tool for correcting the ills of the damage inflicted by the “War On Drugs” and immediately improves the life of a person convicted for something the state no longer considers a crime. Many feel it is a significant disservice to the community not to do a better job of informing them of this opportunity. 

Jennifer Donahue, a spokeswoman for the Massachusetts court system, said in a statement, “it is not the role of the Trial Court to notify individuals of their rights, as we are neutral arbiters of the law.”

Pauline Quirion is the lead attorney for Greater Boston Legal Services, which conducts expungement clinics and represents the petitioner in the case. She and others attribute the low number of attempted expungements to the state not doing enough outreach to Black, brown, and low-income communities that have been subjected to disproportionately high arrest rates for decades. 

Even though the state has topped over $2 billion in cannabis sales, too many people with eligible marijuana and other convictions are unaware they have the right to seek an expungement or to seal their records. 

The 2017 marijuana legalization law mandated the Massachusetts Executive Office of Public Safety and Security to lead a public awareness campaign around sealing old marijuana records. As of 2021, they have yet to fulfill that requirement and instead focus on a campaign warning against stoned driving.

Officials at the public safety office blamed their failure to launch the campaign on the coronavirus pandemic. They provided no time frame for its eventual debut.

“The tragedy for a lot of folks is that we usually see them after the fact when they’ve lost their dream job or something,” Quirion said.

Several proposed bills would streamline the process of seeking expungements. One authored by state Senator Adam Gomez would direct probation officials to grant expungements for eligible marijuana-related offenses automatically. 

Two bi-partisan representatives introduced the HOPE Act, incentivizing local and state governments to expunge non-violent cannabis convictions. In the past, people were arrested for carrying rolling papers in public.

State Senator Sonia Chang-Díaz is a co-sponsor of a legislative proposal that requires Massachusetts to notify those former defendants whose records may be eligible for expungement. 

“It is unthinkable to me that in a state where voters legalized marijuana, we are still fighting at a legislative level to expunge these decriminalized offenses in a timely manner,” Gomez, a Democrat from Springfield, said. “All Bay Staters that our failed policies have harmed deserve this much-needed clean slate. They should not have to come begging for justice.”