By Josefa Velasquez
June 28, 2019
New York state lawmakers last week voted to decriminalize small amounts of marijuana and expunge thousands of low-level charges — but exactly how that process will work is hazy.
The bill would eliminate criminal charges for possession of less than two ounces of marijuana, reducing offenses to non-criminal violations. The measure also would slash fines and clear records on low-level pot convictions.
Gov. Andrew Cuomo says he supports the proposal. After the Legislature sends the bill to the governor, he has 10 days to sign or veto it.
‘A New World for New York’
The weed rollback will be new territory for the state’s court system, which would be charged with expunging a huge amount of records and alerting law enforcement officials of the vacated convictions.
A full estimate of how many records would have to be expunged hasn’t been determined, according to the state’s Department of Criminal Justice Services.
New York’s court system doesn’t currently have a method for expunging criminal records — and the undertaking will require a “very involved legal process,” Lucian Chalfen, a spokesperson with the Office of Court Administration told THE CITY.
“We are talking about hundreds of thousands, if not millions, of criminal records to be removed from our database,” Chaflen said.
Expunging records would be a “new world for New York,” said Phil Nash, an attorney at Long Island-based Collins Gann McCloskey & Barry who serves on the New York State Bar Association’s Sealing Committee, which deals with closed records and expungements.
The Legislature’s proposal “directs that a lot of things to be done and it’s going to take time to go through,” Nash said.
Illinois, which became the 11th state to legalize marijuana earlier this week, plans to expunge the criminal records of roughly 800,000 people who were charged for purchasing or possessing 30 grams of marijuana or less.
Mandate to Spread the Word
New York’s four-page bill, which has wide-ranging consequences for several state and city agencies, might require some tweaks, observers say.
The bill directs the Office of Court Administration and Department of Criminal Justice Services to spread the word “through its website, public service announcements and other means, in multiple languages and through multiple outlets.”
People need to know about plans for automatic expungement of certain past convictions, how to seek a vacated record and “the impact of such changes on such person’s criminal history records,” the bill states.
The Department of Criminal Justice Services is “reviewing the legislation and will implement a plan that addresses all of the agency’s new responsibilities,” a spokesperson said.
Repercussions Remain for Immigrants
Meanwhile, federal immigration officials will still be able to use prior marijuana convictions against a person applying to become a United States resident, said Marie Mark, an attorney with the Immigrant Defense Project.
“Let’s say I’m undocumented and I’m applying for a green card. For that person, if they have a prior marijuana conviction, they’re not eligible for a green card,” Mark said.
An individual who has a record for low-level marijuana possession will have that record marked as expunged, under the Legislature’s measure. But the record will still exist unless the individual or their lawyer makes a written request to destroy it.
Mark suggested that people in immigration proceedings should not asked to have their conviction records destroyed — because that makes it harder for them to get those convictions vacated by the courts.
“My burden is to provide Immigration with evidence of the outcome of every arrest,” Mark said. “So even if the arrest is expunged, I have to show what happened because Immigration has its own definition of what a conviction is.”
In an effort to address possible immigration issues, Assemblymember Crystal Peoples-Stokes (D-Buffalo) and Sen. Jamaal Bailey (D-Bronx), who sponsored the decriminalization and expungement proposal, also introduced a bill that would allow courts to vacate low-level marijuana convictions. Neither lawmaker responded to requests for comment.
Housing and Child Welfare Risks
Aside from the potential immigration issues that could arise, smoking or possessing marijuana can still land you in trouble if you live in federally subsidized public housing, said Emma Goodman, a staff attorney with Legal Aid.
Marijuana use may be grounds for eviction, since pot is still illegal under federal law. Prior pot use also can be invoked to deny a New York City Housing Authority application.
But exactly how NYCHA will respond to decriminalization of marijuana in New York State remains to be seen. A spokesperson for the agency would only say that NYCHA is subject to the regulations of the federal Department of Housing and Urban Development, which views weed as a controlled substance.
Goodman also noted that drug use by parents still can result in children being removed from a home.
The Administration for Children’s Services says it only removes children when it’s believed they are at imminent risk of serious harm.
“Just like alcohol use, child protection teams assess the impact of marijuana use on parents’ ability to care for and keep children safe. Marijuana use in and of itself does not and would not lead to a removal of a child,” said Marisa Kaufman, an ACS spokesperson.