Missouri courts await marijuana expungement guidance

A judge's gavel is seen Thursday February 21, 2019, in a courtroom at the Cole County Courthouse in Jefferson City.

Baked into the 39-page text of the recently passed amendment legalizing recreational marijuana in Missouri is a section mandating expungements for marijuana convictions -- a section some Missouri officials are uncertain about as the date it goes into effect looms closer.

The ballot measure amending Missouri's constitution to legalize the personal use of marijuana for those 21 and older goes into effect Thursday. It includes Section 10(7) and 10(8), which gives circuit courts up to a year to automatically expunge the criminal history records of all misdemeanor marijuana offenses, according to the amendment.

This includes misdemeanors and a handful of certain felonies that don't involve violence, delivery to a minor or operating a motor vehicle under the influence of marijuana.

The amendment goes into effect in four days, yet Cole County Presiding Judge Jon Beetem said he's still waiting for direction from the Office of State Courts Administrator on how his office should carry out the expungements. Currently, there are no existing forms, he said.

Beetem anticipates the process might be especially arduous for circuit courts.

The relevant charges one might have are possession of a controlled substance or more than 35 grams of marijuana. But records that merely say "possession of a controlled substance" don't specify which substance. Beetem said circuit courts would have to look at the original, individual case file to determine whether the substance was marijuana and the charge eligible for an expungement.

"There are felony charges out there that can't be determined from the charge code, and these will have to be looked at. The general possession of a controlled substance charge is the same for methamphetamine as it is for heroin as it is for marijuana," he said.

Communications counsel for the Supreme Court of Missouri could not be reached for comment.

While it's likely that misdemeanor charges could be easily and automatically expunged through a computerized process, Beetem said it's likely expunging the felonies will take a much more involved process.

Jefferson City District Defender Justin Carver confirmed the judgment and sentence would not specify the underlying substance.

"However, the charging document that was filed in the court case would specify the substance that the person was convicted of possessing," he said. "The court clerk's office would have to look at all of their old possession of a controlled substance case files and pull out the underlying charging document to figure out what it was that the person had possessed."

Carver said the court clerk's office is already shorthanded by around three people.

"It's going to take a lot of time and energy. There's a lot that could go wrong. It's going to be difficult to catch those cases," he said.

Additionally, while all case files from after 2014 are electronic, meaning they should be accessible to circuit courts, Beetem said case files from before 2014 will only have an electronic docket sheet.

"Historically, there have been old court files that are destroyed or no longer retained as part of the court's processes," Carver said. "But even things like a flood in the basement in any circuit court could have damaged those files. That kind of stuff happens."

Beetem said, "There are a lot of unknowns. It can't be done easily."'

Per the amendment, the office of the state public defender is directed to prepare forms that may be filed by individuals. Courts are directed to make these forms "readily available and accessible."

Circuit courts are meant to issue the expungement and direct other entities maintaining that record to do the same, including the city, the jail, the sheriff's department, the prosecutor's office and the National Crime Information Center database.

The efficiency of this expungement process is critical due to the amendment's implication that these should be carried out automatically within the next year.

Beetem said he assumes the circuit courts will be notified about which cases they will have to look at, but he's still waiting for guidance on what can be done.

Beetem said he knows they've been working on figuring out how to handle these expungements since before the election.

"I think everybody's making a really good faith effort to try to get it done," he said. "It's just trying to figure out the mechanics of it."

Those currently under supervision by the Department of Corrections for the same offenses can petition the courts to vacate their sentence, release them from incarceration and expunge all government records of their case. According to the amendment, there will be no filing fee for those seeking to petition.

Karen Pojmann, communications director for the Missouri Department of Corrections, said the amendment won't have a huge effect on incarceration. About 27 people would be eligible for release from prison under Amendment 3, and the projected total statewide prison population will be reduced by about 63 people by 2025, she said. Around 565 people on probation or parole supervision will be eligible for discharge from community supervision.

"But most of the people in prison for drug crimes are there for more serious drugs or were convicted of other, more serious crimes along with marijuana," she said.