Prosecutors move toward expunging marijuana convictions

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By , VTDigger.org

marijuana
Marijuana possession will become legal in Vermont on July 1. File photo by Andrew Kutches/VTDigger

County prosecutors around the state are looking at coming up with a way to expunge certain marijuana convictions now that the state is poised to legalize it for recreational use in just a few weeks.

A report surfaced last week on the national news website, HuffPost, that the Chittenden County state’s attorney’s office was preparing a policy to allow people with convictions for possessing small amounts of marijuana to apply to have those records expunged or sealed.

The report comes as Vermont is set to legalize on July 1 the possession of 1 ounce or less of marijuana and two mature and four immature marijuana plants by people 21 or older.

“I think the simplest way of looking at it for us is just that these people have convictions that if they were to commit them today they wouldn’t be a crime,” Chittenden County Deputy State’s Attorney Justin Jiron is quoted as saying in the HuffPost article. “So it seems unfair to basically saddle them with a conviction for something that is now legal.”

Shortly after the article appeared online, Chittenden County State’s Attorney Sarah George tweeted, “Note to self: @HuffPost can’t keep a secret” and then added, “But yes, working on details but will absolutely make this happen.”

George, in response to VTDigger on Wednesday seeking comment along with a series of questions, wrote in an email, “I am working on the details in the next week or so and hope to have an official press release and responses to all of these questions at that time.”

The questions included exactly what specific offenses would qualify and the process that would be set up.

David Cahill
David Cahill, Windsor County state’s attorney. File photo by Elizabeth Hewitt/VTDigger

Windsor County State’s Attorney David Cahill said Wednesday that there is a “lot of momentum” behind the topic.

“I think we’re going to have good news for people who have marijuana convictions,” he said. “There are few other partners involved in making a mass expungement work effectively. We’re still in dialogue with those partners, and by we, I mean a number of state’s attorneys.”

Cahill added that as part of the process he has had conversations with George and other state’s attorneys on the matter.

“If it’s getting expungement done for people who deserve expungement, yes, we are working together toward that goal,” he said.

Exactly what the plan looks like is still being developed, Cahill added.

He did say, “In the context of offenses involving possession of a small amount of a substance that is going to be legal in many contexts to possess after July 1, the balance does shift in favor of expungement of many criminal records.”

Vermont Defender General Matthew Valerio said he didn’t believe that all that many cases would be affected by a “wholesale” expungement of misdemeanor marijuana convictions.

That’s because Vermont decriminalized the possession of up to an ounce of marijuana in 2013, resulting in only civil penalties for violations. And, he added, it is possible to have possession convictions expunged through a court process.

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.

Valerio did say that it makes sense for state’s attorney to pursue such a process.

“I don’t know exactly what she’s doing,” Valerio said of George, “but it doesn’t surprise that someone is forward looking on this. I give her a lot of credit for that.”

He said there are cases where people prior to the decriminalization of marijuana decided to plead guilty to a misdemeanor pot charge and pay a fine rather than going through a court diversion program that would have cleared that offense from their record.

As a result, he said, later in life they discovered that having that conviction could affect their ability to obtain certain jobs, qualify for student loans or federally subsidized housing.

John Campbell
John Campbell, executive director of the Department of State’s Attorneys and Sheriffs. File photo by Roger Crowley/VTDigger

John Campbell, executive director of the Department of State’s Attorneys and Sheriffs, said it is a matter that each state’s attorney is going to have to decide whether it’s something they want to pursue.

“There’s no question that they would have to coordinate with the courts and other parties because when you expunge something that means all the records have to be deleted,” he said. “Therefore, any court records, any police records, would have to be deleted.”

He added charges that would likely qualify for such an expungement process would either be pretty old or tied to another criminal “event,” where other charges were brought along with a misdemeanor marijuana offense.

“The individual state’s attorneys will be taking a look to see if whether it’s in the public’s interests to do this and whether the person has earned the right to have that happen,” he said.

“I think if you had someone who had continuously got in trouble after they got arrested for possession,” Campbell added, “they might not be likely candidates.”

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