Recreational Marijuana Legislation and Erasing Criminal Convictions for Marijuana in Connecticut

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By Cody N. Guarnieri, Esq.

What happens when you have a criminal record for doing something that has come to be legislated as a form of recreation? Tens of thousands of citizens of Connecticut have criminal convictions for various possessory and trafficking marijuana-related offenses. With the legislative gears turning at full speed, weighing the economic and normative arguments for legalizing the recreational possession and use of marijuana in Connecticut, many questions remain about how possible cannabis recreation laws could address the expungement or erasure of those with criminal records for newly legalized conduct.

Marijuana-related crimes in Connecticut are misdemeanor and felony criminal offenses. The exception is that the possession of less than ½ ounce of marijuana has been decriminalized in recent years. This does not mean that it is has become legal; merely that it is penalized by a civil fine only and does not entail the risk of incarceration as a crime does. Possession of more than ½ ounce, but less than four ounces or marijuana is a misdemeanor offense, which, for a first offense, can entail punishment of up to a year in prison, a $500 fine, or both. Any subsequent offense for possession of more than ½ ounce and less than four ounces of marijuana is a felony and can entail punishment of up to five years in prison, a $3,000 fine, or both, for each such offense.

Next, possession of more than four ounces of marijuana is a felony, which, for a first offence, can entail punishment of up to five years in prison, a $2,000 fine, or both. Again, for a subsequent conviction for possession of more than four ounces of marijuana, still a felony, the punishment can include up to ten years in prison, a $5,000 fine, or both. There are also a number of other crimes or enhanced penalties related to marijuana offenses, including: possession within 1,500 feet of a school or daycare center, possession with intent to sell or distribute, sale, sale to a minor, possession with intent to sell within 1,500 feet of a school, daycare or public housing facility, possession of drug paraphernalia, delivery of marijuana, and a number of others.

Given the myriad of crimes surrounding the possession and use of marijuana in Connecticut, the fate of those who maintain these convictions is unclear from the proposed legislation to legalize recreational marijuana. Limitedly helpful in understanding the variety of approaches to this problem is to consider what some of Connecticut's sister states have done.

While legal recreational marijuana remains in its infancy throughout America, some of the states that have enacted laws have taken steps to address the decriminalization aspect of the legalization of marijuana. In Massachusetts, both adults and juveniles convicted of what has become a decriminalized cannabis offense can file a petition to expunge the conviction. The petition must be filed in the court that handled the original case and a copy must be sent to the District Attorney who prosecuted the case. While it appears that misdemeanor marijuana convictions can be expunged as a matter of right, felony convictions can only be expunged where they occurred not more than seven years before the petition for expungement is filed and do not involve a crime against a person. Given the very recent legislation in Massachusetts (legalization enacted in October of 2018), it is unclear how long that state's expungement process takes and whether it is considered a successful model to be replicated in Connecticut.

In California, a bill was also recently (October 2018) signed by the governor which starts a statewide process to automatically review and potentially reduce or dismiss sentences and records for low-level marijuana offenses. The California law requires the state Department of Justice to identify cases "potentially eligible for recall or dismissal of sentence, dismissal and sealing, or redesignation" before July 2019. The prosecution then has until July 2020 to challenge any cases it feels should not be reduced or dismissed. Charges associated with possession of small amounts of marijuana can be dismissed under the new law, while felonies, like sale without a license, can be reclassified as misdemeanors. It is also difficult to predict how this law will fare, particularly given the cost associated with making the screening process internal within the California Department of Justice.

In Colorado, local approaches are being undertaken to address the decriminalization concerns. For example, in Boulder, the District Attorney's office launched a "Moving on from Marijuana" initiative where they are conducting a review of cases that involved the use and possession of small amounts marijuana that would no longer be illegal today. Cases that are eligible will have the old marijuana convictions sealed and vacated. Individuals in Boulder who have been convicted of minor marijuana charges can also apply online to see if their convictions qualify for expungement. Similarly, the City of Denver's "Turn Over a New Leaf" program launched in January of 2019, and also allows individuals who were convicted of a low-level marijuana offense, committed in Denver, that was based on conduct now legal under current law, to apply to have their conviction expunged. However, Connecticut's local (municipal) governments generally would not have the legal authority to undertake programs such as these.

Given the myriad of approaches to this issue, it is unclear what direction legislation in Connecticut could take. To date, the bill introduced to legalize recreational marijuana in Connecticut with the most apparent support, General Assembly Bill 5595, merely lists the aspiration of addressing this issue nearly as an afterthought: ("(15) expunge marijuana possession offenses from anyone convicted for marijuana possession"). There is no practical plan proposed for how such convictions will be expunged, through what process, and precisely which convictions will be qualifying (and from a legislative point of view, how to justify which criminal offenses to include for expungement and which to exclude). That bill has since been referred to committee.

Whether it be petitioning the court in which you were convicted for an expungement, similar to the current process in place after the decriminalization of possession of less than ½ ounce of marijuana, or a more robust expungement process, our Marijuana Law attorneys will continue to be thought leaders in this area of developing criminal and marijuana law and policy. If recreational marijuana laws are passed in Connecticut, contact one of our experienced marijuana and criminal law attorneys to learn if an expungement process has been legislated that could benefit you or a loved one to address a conviction for a decriminalized marijuana or cannabis offense.