Legalizing weed would clear many Missourians' records. What vote means for criminal justice




  • In US
  • 2022-09-27 11:30:00Z
  • By Kansas City Star
 

For the most part, Bruce lives a quiet life on a farm in Miller County, a few hours southeast of Kansas City. The 63-year-old man, who asked to only use his first name, used to be in a Missouri biker gang, but he has since hung up that life. In 2018, an unexpected raid left the retired biker with a felony for possession of firearms, 17.5 months in jail and two years on federal probation.

Prior to his conviction, Bruce injured his back while working out on his farm. He said he's seen how marijuana can help others dealing with pain. His doctor told him that the plant could be an option for him, but his probation officer disagrees.

"My probation officer tells me I can't smoke or nothing like that, even with a medical card," said Bruce. "How can they deny you if it's [for] medical attention?"

Now that recreational marijuana legalization is on the ballot on Nov. 8, he would like to make sure he understands his rights.

Although weed is decriminalized in Kansas City, the laws can feel complicated, especially if you're dealing with previous charges. Here's a look at what the state's current marijuana laws are.

In Missouri, 50% of drug arrests are due to marijuana possession. Black Missourians are more than twice as likely to be arrested for possession than white Missourians, according to the American Civil Liberties Union of Missouri.

If passed, marijuana legalization would be enshrined in Missouri's constitution.

The amendment includes a number of provisions for criminal justice reform. Here's a look at what we know so far about how its passage could affect people with previous charges in Missouri.

Will you be able to buy and use marijuana if you have a criminal record?

Anyone who is 21 years and older would be able to buy and use marijuana recreationally, even if they have a criminal background, so long as they are not violating the terms of their probation or parole.

People who are 18 years old and older with a state-issued medical marijuana card would also be able to purchase marijuana from medical dispensaries. The amendment also adds protections for patients who use medical marijuana but are concerned about keeping their job or custody of their kids.

If this amendment is added to the state's constitution, having a medical marijuana card cannot be used against patients by employers or child protective services.

Who gets automatic expungement?

The amendment also calls for automatic expungement for nonviolent marijuana charges.

Expunging a record means that the court would seal a criminal charge so it is no longer public. However, the record can still be unsealed with a court order, according to the Missouri Bar.

So, any person who is not currently incarcerated but has a nonviolent marijuana charge, with the exception of driving under the influence and selling weed to minors, would have their record reviewed and expunged by the courts by June 8, 2023, if the amendment passes.

Cases will be expunged in order of the severity of the case, so less severe cases will be expunged first, according John Payne, a spokesperson for Legal Missouri 2022, the group that launched the ballot initiative and pushed for the 2018 amendment that legalized medical marijuana in the state.

Sealing those records could affect thousands of people's access to employment, housing and wages. Expungement would not apply to people with charges of violent crimes, or whose offenses involved distribution to a minor or driving under the influence of marijuana.

What is a nonviolent versus a violent crime?

A lot of the language around who will get expungement or not mentions people who have nonviolent offices. So, what constitutes a violent versus nonviolent charge?

A violent crime includes crimes that cause bodily harm or injury to another person, this includes the threat of harm or injury. Examples of violent offenses include murder, domestic assualt, some kinds of robbert and most armed criminal acts.

Nonviolent crimes typically don't involve any force or harm to any person. Examples of nonviolent crimes include drug possession, gambling or disturbing the peace.

"Very few marijuana crimes will be violent in and of themselves because [they're usually] possession or distribution charges," said Patrick Nolan, a marijuana defense attorney in Missouri.

Nolan gave an example that if someone who is in possession of marijuana also gets charged for possession of a firearm, their case could be considered violent. Whereas, a simple possession charge would be considered nonviolent.

What if the charge was considered a violent crime?

If a person does have a violent charge on their record, they would still be able to legally purchase weed if the amendment passes, but they won't be able to start a licensed marijuana business. And their violent charge wouldn't be automatically expunged from their record.

What about people who are currently in jail or prison for weed?

People who are still incarcerated would not automatically have their charges dropped or expunged if the amendment passes. However, people with nonviolent charges would be able to petition to be released from jail, prison or to be removed from parole and probation and have their records expunged.

"The Department of Corrections is going to basically require that there'll be some kind of paperwork that they process in order to let somebody out. That's the only way," said Payne.

If someone is incarcerated with a violent marijuana charge, such as an armed robbery, they likely won't be able to successfully petition for an early release or to be removed from probation. But if that person committed a violent crime in addition to a nonviolent weed charge, like an armed robbery while in possession of marijuana, it's likely that that marijuana charge would still be expunged once they finish their sentence, according to Payne.

Will Amendment 3 affect people on probation?

Yes.

"One of the requirements for probation is that you do not break any law. And marijuana remains illegal at the federal level," Nolan said. "At the federal level, this constitutional amendment has no meaning or value at all. Marijuana is illegal at the federal level period."

While the passage of Amendment 3 does offer most adults the right to buy and use marijuana, people who are on probation or parole are subject to rules that may prohibit them from participating in otherwise legal marijuana use. This would likely be the case regardless of if the parolee or probationer has charges at the state or federal level.

"When you're on probation, you can't violate laws in any city ordinance, state laws and federal laws, you're not allowed to violate them. If you do, the probation could be revoked," Nolan said, adding that the same is true for people on parole. If someone is on parole or probation, they will also be prohibited from using marijuana even if they have a medical marijuana card, Nolan said.

Nolan said the fact that weed could be legal in the state will not change much considering some probationers and parolees already have to forgo alcohol, which is a legal substance. Since the amendment doesn't explain what will happen to probationers and parolees, Nolan said it's possible that federal and state courts could rule on the subject in the future.

"What that creates is a situation where they're requiring a judge to approve of you violating federal law," Nolan said.

"There are gonna be some judges that aren't going to care and they're gonna say, 'Yeah, sure, it's legal, so we're not gonna worry about it.' And you're gonna have some judges say, 'No, we're not doing that.'"

However, once someone is off probation or parole and has met all the requirements, they will be free to legally use marijuana either recreationally or medically, within Missouri state lines, if the amendment passes.

Can people with past weed-related charges legally sell marijuana?

Yes, but it may be difficult to get a micro-license to sell under the new program.

The amendment does prevent business owners who have pleaded guilty or have been found guilty of a felony offense from qualifying for a license to sell, but, there are exceptions for marijuana charges.

That means that anyone with a past marijuana charge, unless the charge was for providing weed to a minor, will be able to apply for one of the limited number of micro-licenses. Those with felony offenses that are more than five years old that the person was not incarcerated for, or whose probation or parole has ended for a felony charge more than five years ago, can also qualify for a micro-license to sell.

Nolan said it's best for someone to talk with a lawyer if they are concerned about how a new legal marijuana program could affect them, their case or their past charges.

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