Legalization Bill Would Wipe Slate Clean for Some Past Offenders

By Megan Brockett

ANNAPOLIS (March 14, 2014)—When Diamonte Brown was 26 years old, she was pulled over for an unlit tag light and arrested when a police officer found a small amount of marijuana in her car, Brown said, stuffed inside a balled up pair of gloves in her passenger’s purse.

Brown was a few years away from obtaining her master’s degree in secondary education. The arrest, which never evolved into a conviction, would later halt her search for a teaching job when a Baltimore City school told her that a background search turned up the arrest record, making her ineligible to work or volunteer there.

A handful of lawmakers are now fighting for legislation that would downgrade the type of offense Brown was charged with from a criminal to a civil transgression, close in penalty to a parking ticket. Another group of legislators, led by Sen. Jamie Raskin, D-Montgomery, is pushing to legalize marijuana for people 21 and older in the state, similar to what lawmakers in Colorado and Washington have done.

But one segment of Raskin’s legalization bill delves into an area left untouched by the laws in those states, where legalization has created a paradoxical scenario for people dealing with the consequences of having once been convicted of an offense that is no longer against the law.

Raskin’s measure, as it now stands, would “expunge,” or wipe away, the conviction of a person previously found guilty of any marijuana-related offense that would become legal if the bill becomes law.

According to supporters, the provision would tear down barriers to work and education that exist for large swaths of the population with minor marijuana-related offenses, some years old, on their records.

Leigh Maddox, a professor at the University of Maryland Francis King Carey School of Law and a former captain of the Maryland State Police, said that her work holding legal-service clinics completely changed her thinking on the issue of marijuana and opened her eyes to what she called “the collateral consequences that never even occurred to me as a police officer.”

Maddox and others run the clinics twice a week in Baltimore through the university. They offer people 30 minutes of legal advice from an attorney for $10. She said that during nearly every clinic, someone inquires about expunging a drug charge.

“I have to tell them, ‘Sorry, the expungement laws in Maryland are so tight right now that what you currently have isn’t eligible for expungement, and the best you can do is make an application for a pardon, but that’s a tough hill to overcome,’” Maddox said.

Often, Maddox asks them what’s behind their request.

“Why are you so concerned with this [15-year-old] conviction?” she asks. “It’s possession. Is it really bugging you that much?”

The answer is “yes,” she said. Sometimes they tell her of jobs they applied to, and got, but had to leave after a background check turned up the charge. Sometimes they tell her that they’re ineligible for housing aid, or federal loans for school, all because of a marijuana charge from when they were a teenager, she said.

“I hear these stories over and over and over again,” Maddox said. “And it’s just like, wow, we shut people out of society, effectively,—poor people—... over something that is just so silly.”

In Maryland, a person can only expunge a conviction if it falls into a narrow category known as “nuisance crimes,” according to David Waranch, a criminal defense attorney who deals with expungements.

Marijuana convictions are not included in that category, he said, rendering a large number of residents ineligible .

Maryland had the fourth-highest arrest rate for marijuana possession in the country in 2010, with more than 23,000 recorded in all , according to a report released by the ACLU in October.

But many opponents of legalization and decriminalization, especially those in the legal field, point out that few first-time marijuana possession cases end in a conviction.

“This concept that there are people in jail for possession of marijuana in the state of Maryland is completely wrong,” Scott Shellenberger, State's Attorney for Baltimore County, said.

Shellenberger said that most jurisdictions have diversion programs, which allow first-time offenders who complete certain steps, like a drug awareness class or a drug evaluation, to have the charges against them dismissed. Legislation is before lawmakers this session that would require all counties to institute diversionary programs.

Second-time offenders, Shellenberger said, typically receive what is called “probation before judgement,” which is also not a conviction and can be expunged after a wait time that is typically three years.

“People who have a conviction on their record for possession of small amounts of marijuana are usually on their third or fourth arrest,” Shellenberger said. “I just don’t see this as being a tremendous problem for people with having to wipe this off their record. It’s typically not on their record.”

But in some cases, such as Brown’s, the arrest alone can prevent a person from getting a job.

When Brown received a probation before judgement, agreeing to a probation term without conviction, she asked the judge if it would affect her employment, and was told she would be able to answer “no” on job application questions that asked if she had ever been convicted of a crime.

What she didn’t know, Brown said, was that some agencies, like the school system, ask more than if you have ever been convicted.

“They ask, ‘Have you been charged?’ … ‘Have a you ever received a probation before judgement?’ ‘Have you ever been arrested?’ Those were things that I couldn’t say ‘no’ to,” she said.

Brown now serves as director of Out For Justice, an organization that focuses on breaking down barriers for past offenders.

“We think anybody who has offended should be responsible for their actions, and they should take responsibility,” she said. “But after you complete your punishment, unfortunately society doesn't know when to end [it] … It’s like you just have this scarlet letter for the rest of your life, despite the fact that you’ve completed the sentence you were given.”

Raskin’s legalization proposal would wipe away prior minor marijuana arrests and convictions.

But a decriminalization measure sponsored by Sen. Robert Zirkin, D-Baltimore County, and passed Friday by the Senate does not contain a provision that would expunge prior marijuana convictions.

Zirkin said he fully supports the expungement provision in Raskin’s bill, but left it out of his proposal in order to give it the best chance of passing.

He noted that his measure would shield any civil citations issued for marijuana possession from public view, and said another piece of legislation, the Maryland Second Chance Act, might provide the best opportunity for backward-looking expungements.

An analysis of Raskin’s legalization bill by the Department of Legislative Services raises concerns that the “automatic expungement” of eligible convictions could prove problematic.

It notes that certain information necessary for carrying out expungements under the bill, like the amount of marijuana involved, may be difficult or impossible to obtain in some cases.

Shellenberger agreed that the retroactive nature of the provision would be problematic, and said enforcing it would likely be costly and create significant work for courts and law enforcement.

“It’s one thing to say ‘OK let’s change the rules going forward.’ It’s whole different thing to say, ‘Let’s change the rules going backward,’” Shellenberger said.

But for some advocates of legalization and of criminal justice reform, a retroactive rule change is important because they find the system flawed in a way that creates what Brown called “perpetual punishment” for past offenders.

The resistance to change, they believe, does more harm than good.

“People always wanna make it seem like it’s a phase and it’s a young thing, and when you get a certain age you shouldn’t smoke marijuana anymore, you shouldn’t get in trouble anymore,” Brown said.

“You can be an idiot at any time … I just happened to be an idiot at 26,” she said. “I got caught … It’s really that simple … I could be an idiot again at 70. It’s not an age thing, it’s not an economic thing, it’s not an environment thing. It’s just, everyone makes mistakes. That’s all. Everyone’s human.”

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