Many more marijuana expungements are likely
Contrary to information from the Missouri Office of State Courts Administrator (OSCA), as recently reported by The Missouri Independent, it is likely there will be many more marijuana cases required to be expunged pursuant to Article XIV, Section 2 of the Missouri Constitution as passed by voters in November of 2022.
According to statistics from the FBI, there were more than 16,600 marijuana arrests in 2018. In fact, the number of arrests is almost certainly far higher because only 56% of Missouri law enforcement agencies reported these numbers to the FBI.
A conservative estimate of 20,000 marijuana arrests per year would mean that the 140,000 expungements so far represent only about seven years of such arrests.
Not only have there been far more marijuana arrests than the expungements accomplished so far, but as reported by The Independent, OSCA believes that, “…the first marijuana-related drug statutes are from 1971…”. This is absolutely false. Marijuana has been prohibited under Missouri law for about a century, approximately twice as long as OSCA seems to think.
As noted by The Independent, the Missouri Supreme Court statistics regarding expungement do “not include the paper records”. There were almost no electronic court records until the beginning of the 21st century. Many counties continued to use paper records until approximately 2014.
“The fact that the records are on paper and therefore require more work to expunge, in no way exempts them from the Constitutional mandate to expunge almost all marijuana cases. If necessary, Missouri NORML is prepared to litigate this issue until all required expungements have been completed” said Dan Viets, J.D, Missouri NORML coordinator and one of the authors of Article XIV.
As The Independent noted, “…there’s no set date for how far back the county courts have to go”. Article XIV provided virtually unlimited funding to pay for expungements. In fact, the revenue from the 6% statewide sales tax on more than $1 billion in marijuana sales provides ample funding for the expungement process. But many Circuit Clerks have been reluctant to hire staff to make this happen.
In addition, there are many tens of thousands of municipal marijuana cases which have yet to be expunged. Missouri municipal courts have taken the position that they are exempt from the expungement mandate, but they are not. Article XIV clearly requires Missouri circuit courts to expunge almost all marijuana cases. Municipal courts are subdivisions of the Circuit Courts. Some argue that city ordinance violations are exempt because they are not misdemeanors. In fact, the charters of many cities across the state explicitly refer to such violations as misdemeanors.
A case is currently pending in the Missouri Court of Appeals which will very likely clarify the fact that municipal courts are required to expunge marijuana-related cases. Finding otherwise would produce the absurd result of almost all felony marijuana offenses being expunged, but not city ordinance violations.
The Independent printed statistics from several Missouri counties, but preceded those statistics with the statement that, “Under the 2022 constitution (sic) amendment that legalized marijuana, courts were required to expunge all nonviolent offenses for possessing or selling three pounds or less of marijuana…”. This is a mistaken interpretation of the law.
The three pound limit relates only to obtaining early release from prison. Article XIV, Section 2, 10. (8) states “for all class A, class B, and class C or successor designation, felony marijuana offenses, and for all class D, or successor designation, felony marijuana offenses for possession of more than three pounds of marijuana, the courts of this state shall order expungement of criminal history records….”.
Missouri NORML representatives participated in the drafting of Article XIV. Missouri NORML Coordinator, and now Chair of the national NORML Board, attorney Dan Viets, chaired the Board of Directors of the 2018 medical marijuana initiative campaign and Chaired the Board of the 2022 adult use legalization initiative campaign.
