New York’s 2021 cannabis legalization bill includes two provisions aimed at reducing the impact of prior marijuana convictions. One makes it easier to expunge misdemeanor records involving conduct, such as possession of a small amount of marijuana, that is no longer a crime. Another was to help people convicted of marijuana offenses by reducing their records in accordance with current law. But like The New York Times notes, a typographical error made the latter type of relief more difficult to obtain than lawmakers had promised.
The New York State Unified Court System says misdemeanor convictions involving possession of up to one pound or sale of up to 25 grams “will be automatically expunged…without any application and without any fees.” While the process for downgrading felonies under the Marijuana Taxation and Regulation Act is a bit more complicated, the law was intended to create a presumption in favor of relief. Thanks to sloppy workmanship, it didn’t work out that way.
The section of the law dealing with prior marijuana convictions describes two types of situations. Paragraph 2(a)(i) refers to a person convicted of a marijuana offense that “would not be a crime” if the 2021 changes were in effect. Paragraph 2(a)(ii) refers to a person who “would be guilty of a lesser or potentially less serious offense” under applicable law.
Under § 2(b), a court receiving a petition from someone convicted of a marijuana offense that no longer exists “must . . . grant a motion to vacate such conviction.” The paragraph adds that a court “may substitute, unless it is in the interest of justice, a conviction for an appropriate lesser offense” when “the petition meets the criteria of subparagraph (i) of paragraph (a).”
Oops. These were clearly meant to be the “criteria in sub (ii) paragraph (a),” since it makes no sense to substitute “conviction of an appropriate lesser offense” when no such offense exists. Because of this error, persons with marijuana felony convictions cannot benefit from the streamlined relief process that the law was intended to provide.
“It’s literally a tipfeler,” said Emma Goodman, a lawyer for the Legal Aid Society times, who says the error “prompted eye-rolling jokes about government dysfunction.” But for people saddled with criminal records for engaging in a business that New York has now legalized, the situation is no laughing matter.
Under the previous law, for example, someone caught with eight ounces to half a pound of marijuana was guilty of a felony punishable by up to four years in prison. Under current law, possession of that amount in public is a misdemeanor punishable by a maximum fine of $250. Having five pounds or less at home is legal.
Possession of between one and ten kilograms of marijuana used to be a felony punishable by up to seven years in prison. Public possession of one to five pounds is now a misdemeanor punishable by up to a year in jail and/or a fine of up to $1,000. Possession of more than five pounds (the limit for private possession) remains an offence, but the maximum sentence is now four years instead of seven if the amount does not exceed £10.
In other words, many people who have felony marijuana records, which are barriers to housing, education, employment, and professional licensing, should be able to be freed from those burdens through the process created by the Marijuana Regulation and Taxation Act. In some cases, felonies would become misdemeanors; in other cases, they would be civil offenses. But because of the missing Ithat process is more difficult and uncertain than it should have been.
In an email, Goodman estimated that 9,000 marijuana convictions are covered by New York law, about half of which involve crimes that are no longer felonies. “There should be a form that allows for a simple request to have your conviction reduced/reduced to the current offense level,” she writes. Although the bill’s language gives courts discretion in granting petitions, she says, “nobody expected the denial of a simple lower-level felony commutation. It was expected to be a very simple process that could be done on its own.”
A drafting error “prevented felons from submitting a simple sentence reduction form,” times notes. Instead, “they must have a legal petition drafted and filed with the county court where they were convicted.” While “such proposals have mostly passed in more liberal countries”, times he says, they face opposition from some local prosecutors.
“There are still significant contingents in parts of the state who oppose the law and don’t want it implemented,” Goodman said times. “Everyone in Albany understands it’s just a mistake,” she adds, but “there’s no easy way to fix it.”
Correcting the error would require new laws. “It could take some time,” a spokesman for New York Assembly Speaker Crystal D. Peoples-Stokes (D–Buffalo) told times“but that’s about it.”