Expunge Me

New Mexico courts, public safety department gearing up to remove thousands of cannabis charging records from public view

by Jeff Proctor

March 30, 2022

7:09 AM

Anson Stevens-Bollen

Lawmakers were so determined to tear down barriers to housing, jobs and federal student loans created by cannabis possession raps that they gave their idea its own bill during last year’s special legislative session, alongside another measure legalizing adult use and sales of the plant.

The law requires “automatic expungement,” the removal of certain charges and convictions—for anything marijuana-related that would be made legal by the Cannabis Regulation Act—from public-facing law enforcement and court databases.

Soon enough, anyone over 21 will be able to walk into a dispensary and buy cannabis; but those eager to see those old weed pinches go away will likely be waiting a while.

That’s because there’s a mountain of work ahead for two state agencies. It includes combing through seemingly bottomless, sometimes unreliable digital record repositories; sorting out who’s who for folks with the same name; making sure to leave public access intact for offenses that are still illegal; and even exhuming decades-old paper files from rural courthouse basements.

And while all that’s happening, the state Supreme Court must determine a procedure to let expungements go forward. The justices have yet to settle on a course of action, and there is no timeline in place.

The state Department of Public Safety drew first watch under the parameters laid out in 2021′s Senate Bill 2, which Gov. Michelle Lujan Grisham signed. As SFR reported last April, the department got right to work, identifying 154,791 cannabis charges eligible for expungement.

The law’s first deadline passed on Jan. 1, requiring DPS to send the list of cases to the courts, prosecutors and public defenders. That’s done, Records Bureau chief Regina Chacon tells SFR, and now, she and her staff are waiting on the courts.

“It could be that we will get 154,000 petitions all at once,” Chacon says, somewhat in jest. “We don’t know if it will be that, or if they will trickle in.”

DPS has some experience with expunging records from in its databases. In 2019, lawmakers passed a measure allowing people to file petitions requesting records of certain crimes be expunged. (The difference with the cannabis bill: It makes that process automatic.)

“We thought we were going to get hit left and right,” Chacon says, “but it’s just been steady.”

The department processed 337 expungements in 2020 and 615 last year, she says. The job is sure to get bigger with the cannabis law, and DPS received a legislative appropriation for two additional full-time employees to help out.

Expungement has been a priority for cannabis legalization advocates and the legislators who’ve worked with them for years. They’ve viewed it as one step toward undoing the harm prohibition and the drug war have caused people, particularly in communities of color.

Removing old possession arrests and convictions from law enforcement databases so that they don’t stand in the way of people’s employment, renting and academic advancement is just part of the puzzle.

The courts are the other.

A simple search on New Mexico’s court website turns up reams of cannabis-related charges. That’s got to change now, too, under state law.

Like DPS, the Administrative Office of the Courts got a chunk of change from the Legislature to hire contractors to help with the massive task ahead, AOC General Counsel Celina Jones tells SFR.

“We have never undertaken an effort like this before,” Jones says. “And we don’t know exactly how long it will take.”

She lays out several scenarios that will slow the work. For example: In most cases, folks were charged with multiple offenses in addition to cannabis possession. The rest of the charges must remain visible to the public; only the marijuana charge will be sealed.

Another hurdle is the inconsistency from court to court in how charges are captioned in the database. In some cases, the charge is simply labeled “possession of a controlled substance,” with no differentiation between cannabis and, say, heroin.

“In the very near future, we will be trying to come up with a technical process to query our database” to make sure only offenses that are now legal under the Cannabis Regulation Act get walled off from public view, Jones says. “It will be a surgical review, because in so many cases the entire record won’t be expunged. I’m anticipating a manual review for the majority of them.”

Next, prosecutors must challenge any expungements they don’t believe fit within the law by July 1.

It’s possible that the number of charges could grow beyond 154,791, Jones says, as AOC digs into the files.

“We’ll start with the lower-hanging fruit,” she says, “and we’ll know so much more by the fall.”

Meanwhile, Jones reminds folks who are eager to see their old marijuana charges expunged that they don’t have to wait for the automatic process to kick in. Anyone can petition a court for expungement now under the 2019 law.

“The purpose of the act is to make sure that these arrests and convictions are no longer a barrier for people,” she says.

Read more of the Cannabis Guide: