Two provisions in New York’s 2021 cannabis legalisation law are designed to mitigate the effects of prior marijuana convictions. One helps people get their records cleared of misdemeanour offences for things like minor marijuana possession that are no longer illegal.
The latter was meant to help those whose criminal records had been tainted by marijuana convictions by reducing those convictions to misdemeanours in accordance with current law. The New York Times reports that the latter form of relief is more difficult to obtain than promised by lawmakers due to a typographical error.
Possession of less than one pound or sale of fewer than twenty-five grammes of marijuana is considered a violation of state law in New York, but convictions for these offences “will be automatically expunged… without filing any motions and without any fees,” according to the New York State Unified Court System.
The law was intended to create a presumption in favour of relief, even though the process for downgrading felonies under the Marihuana Regulation and Taxation Act is a bit more complicated. It did not turn out that way because of careless writing.
The section of the law dealing with prior marijuana convictions describes two types of situations. A person whose conviction for a marijuana-related offence “would not have been a crime” under the revised law after 2021 is mentioned in paragraph 2(a)(i). “would have been guilty of a lesser or potentially less onerous offence” is what is meant by “would have been guilty of” in paragraph 2(a)(ii) of the Criminal Code.
Under paragraph 2(b), a court that receives a petition from someone convicted of a marijuana offence that no longer exists “shall…grant the motion to vacate the such conviction.” When “the petition meets the criteria in subparagraph I of paragraph (a),” a court “may substitute, unless it is not in the interests of justice to do, a conviction for an appropriate lesser offence,” as the paragraph puts it.
Whoops. That clearly should have been “the criteria in subparagraph (ii) of paragraph (a),” since it makes no sense to substitute “a conviction for an appropriate lesser offence” when no such offence exists. Due to that oversight, people with felony marijuana convictions do not have access to the streamlined relief process that the law was intended to provide.
To quote the Times, “it’s literally a typo,” said Emma Goodman, an attorney with the Legal Aid Society. The paper also noted that the mistake “has prompted eye-rolling jokes about government dysfunction.” However, this is no laughing matter for those who have criminal records because they participated in an industry that has recently been legalised in New York.
Someone caught with eight ounces to a pound of marijuana, for example, could face four years in prison under the previous law. Under current law, a person can be fined up to $250 for being caught in public with that amount. Legal home possession amounts to five pounds or less.
Up until recently, possessing between one and ten pounds of marijuana was a Class I felony, carrying a maximum sentence of seven years. In public, possessing between one and five pounds is now a misdemeanour punishable by up to a year in jail and/or a $1,000 fine.
There is no reduction in the severity of the penalties for possessing more than five pounds (the limit for private possession), but the maximum sentence has been reduced from seven to four years if the amount is less than ten pounds.
Simply put, the process established by the Marijuana Regulation and Taxation Act should help a large number of people with marijuana-related felony records get relief from those burdens. Some felonies could be reduced to misdemeanours, while others could be classified as mere traffic violations. With the I missing, however, the process is trickier and less certain than it should have been.
Goodman said via email that roughly half of the 9,000 felony marijuana convictions covered by New York law involve offences that are no longer felonies. There should be a form to fill out to have your conviction reduced or downgraded to the current level of the offence, she says.
She argues that, even though courts have some leeway in deciding whether to grant petitions given the law’s wording, “No one was expecting opposition to the easy replacement of minor infractions. Since its simplicity was anticipated, many people attempted to handle it on their own.”
A drafting error “has precluded felons from filing a straightforward form to receive a conviction reduction,” the Times writes. But instead they “must file a formal appeal in the county where they were found guilty. ” According to the Times, while “such motions have largely sailed through in more liberal counties,” they face opposition from some local prosecutors.
Goodman told the Times, “there are still significant contingents in parts of the state that are opposed to the law and do not want it implemented.” She continued, “Everyone in Albany knows it was an honest blunder, but there’s no simple solution.”
To fix the problem, new laws would have to be passed. It may take some time,” a spokesperson for New York Assembly Majority Leader Crystal D. Peoples-Stokes (D-Buffalo) told the Times, “but we’re on it.”
