Expungement Day: ‘I’m not going to be looked at as a criminal’

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By , VTDigger.org

expungement day
Windsor County State’s Attorney David Cahill, right, helps Joseph Day of White River Junction fill out paperwork Saturday so Day can have a past misdemeanor marijuana conviction cleared from his record. Photo by Alan Keays/VTDigger

SOUTH ROYALTON – Joseph Day walked into a building on the campus of Vermont Law School on Saturday morning as a convicted drug offender and left about an hour later well on his way to losing that label, and the consequences that come with it.

“I’m not going to be looked at as a criminal or discriminated against as a criminal,” Day said after filling out a petition to have a misdemeanor marijuana conviction cleared from his criminal record. “Of course, having it off my record has the potential of me finding a better paying job.”

Day, 36, of White River Junction, was one of a handful people who turned out for “Expungement Day” in Windsor County, seeking to erase pot possession convictions from their past.

Day said he was charged and convicted in 2015 when he was out of work and suffering from a severe back injury. He said with no health insurance he started to self-medicate with marijuana to ease his pain, even cultivating his own plants.

“Somebody found out and called it in,” he said.

He was ultimately convicted in Windsor County as part of the plea agreement to a misdemeanor marijuana possession offense.

“A lot of potential jobs, good-money making jobs, I got turned down from because of that conviction,” Day said.

The event at the law school Saturday took place about three weeks ahead of a change in Vermont law on July 1 that legalizes the possession of 1 ounce or less of marijuana and two mature and four immature marijuana plants by people 21 or older.

Windsor County State’s Attorney David Cahill and the Center for Justice Reform at Vermont Law School helped walk people through the paperwork associated with filing for expungement.

‘We, as prosecutors, spend most of our days getting convictions, getting convictions that are generally deserved,” Cahill said. “But, there’s an important flip side to this, and that is that everybody deserves a second chance and the law in fact entitles many people to a second chance.”

However, he added, most people don’t pursue that second chance by seeking an expungement of a criminal convictions because of the “many hoops” a person has to go through to obtain one.

“Today, for misdemeanor marijuana convictions, we as prosecutors are attempting to give back and make it easier for you to get your convictions expunged,” Cahill said at the start of the event. “We’re also here, frankly, as a dry run to contemplate how we can go about this for all the other expungeable offenses because the need is there, too.”

The Windsor County prosecutor talked about a future where he hoped to see a wider change in how long the government keeps a person’s criminal records on file.

For example, he said, it is important to retain the criminal records of a person convicted of certain crimes, such as a sex offense against a child, because of the risk of that person repeating the offense and harming another child.

“The same cannot be said of someone who possessed some small amount of drugs 10 years ago and have kept their record entirely clean and since that time has had to answer every job application, ‘Yes, I’ve been convicted of a crime,’” Cahill said.

David Cahill
David Cahill speaks to the House Judiciary Committee. Photo by Elizabeth Hewitt/VTDigger

Such convictions also can have negative consequences for a person seeking federally subsidized housing or student loans, he added.

Vermont’s laws regarding pot has been evolving, though efforts in recent years aimed at establishing a tax and regulated market for marijuana have failed to muster the needed support.

Vermont decriminalized the possession of up to an ounce of marijuana in 2013, resulting in only civil penalties for violations. In addition, in his final days in office in late 2016 and early 2017, Gov. Peter Shumlin pardoned 192 people convicted of possessing small amounts of marijuana.

Gov. Phil Scott, speaking earlier this week, said he would leave the issue of expungement up to the prosecutors.

“I think we’ve gotten to the point where we’ve changed our thoughts, our laws and decriminalization has led to many believing that we should expunge the records for some of those crimes that were crimes then but maybe not now,” he said. “But I’ll leave it to the state’s attorney to do their due diligence.”

In total, more than 30 people attended the event Saturday, including many law school students who turned out to support the effort. Many at the beginning of the event spoke about why they took part, with several calling it a civil rights issue, pointing to racial disparities in the rates at which police officers search people for drugs and other contraband.

Representatives from several organizations offering assistance also participated. They included Vermont Legal Aid and the Pennywise Foundation, which offered to cover the $90 filing fee for expungement petitions for those who had incomes above the requirements needed to obtain a waiver from that expense.

The Pennywise Foundation has made a similar offer for an event set for Tuesday in Chittenden County.

Laura Subin, the foundation’s executive director, said that the state should not be charging for filing an expungement petition. Such a fee, said Subin, who is also the executive director the Coalition to Regulate Marijuana, hurts those who can least afford it.

And, she said, the state stands to gain more economically when barriers are removed to help people advance in their careers, rather than put roadblocks in front them.

“We decided to stand up and say we wanted to do this as a statement to show these fees are wrong,” Subin said.

The event Saturday was held only for people with misdemeanor marijuana convictions in Windsor County, while the one Tuesday is for those with such convictions from Chittenden County.

Sarah George
Chittenden County State’s Attorney Sarah George. Photo by Elizabeth Hewitt/VTDigger

Chittenden County State’s Attorney Sarah George attended the event Saturday at the law school. Expungement Day for Chittenden County is set for 9 a.m. to 4 p.m., Tuesday, in Courtroom 2C of the Costello Courthouse at 32 Cherry St. in Burlington.

“I’d really like for people not to have to be there long and get all the information they need and leave with a copy of what I plan to file,” George said.

Meanwhile, Bennington County is holding two expungement assistance events later this month to help people remove old criminal convictions, not just for misdemeanor marijuana convictions, from their records.

Robert Sand, a law school professor, former Windsor County state’s attorney, and the executive director of the Center for Justice Reform, said Saturday that the criminal justice system has an “incredibly well-oiled mechanism for obtaining convictions” in this country.

“It seems to me that in a just system we should also establish a well-oiled mechanism for removing those convictions,” he said. “I hope that today is part of the process of lubricating the system to remove convictions from people’s records. “

As the event at the law school began to wind down Saturday, Cahill told Day he planned to file his expungement petition the next business day after July 1, the day the law changes regarding marijuana possession in Vermont.

An issue discovered regarding the possibility of an unpaid fine may still need to be resolved, though Cahill told Day he would be advocating that the petition be granted under a provision that allows for such action due to the offense he was convicted of no longer being criminal.

“I’ll got to bat on behalf of what I signed,” the county prosecutor told Day.

A judge must still sign off on the request.

Day, who now works in the nutrition department of a senior care and hospice facility in Woodstock, said growing up in the Upper Valley he took part in scouting, eventually earning the rank of Eagle Scout.

“Part of the Boy Scout oath is to be respectful of your elders,” Day said. “I get to live up that every day.”

And, he said, by getting the marijuana conviction cleared from his record he wants to continue to work to advance his career.

“This is going to be a big help,” he said, clutching his expungement paperwork.

Elizabeth Hewitt contributed reporting

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