Weighting Game: Broken bureaucracy, outdated technology delay expungement for an erased crime

Justice Loadin

Justice loadin. // Illustration by Cassondra Jones

Thousands of Missourians are being haunted by an offense that no longer exists. Missouri legalized recreational marijuana, but there are still thousands of people waiting to be granted a clean slate.

When Amendment 3 was put into action Dec. 8, 2022, it promised to change the lives of citizens carrying around a marijuana-related offense, allowing them to submit for jobs previously off-limits, rent an apartment, apply for scholarships, and receive federal student aid. 

That is… if the courts followed through with the expungement policy. To put it bluntly, they might be unable to spark this one.

Amendment 3 calls for immediate expungement for all misdemeanor marijuana charges in the state. This policy was included in an attempt to keep the courts from being overwhelmed by thousands of petitions and hearings. Looking at the books, there were 21,559 marijuana-related arrests between 2020 and 2021 alone. If every person eligible had to petition to have their records expunged, the courts would burn to the ground under a mountain of paperwork. 

If this streamlined the court’s ability to release the majority of offenders, why haven’t they been able to finish 100 days after the amendment was passed? 

A small, seemingly unimportant language discrepancy between Missouri Law and Amendment 3 has the courts struggling and is barring offenders from finally being free from their past. According to Missouri law, a misdemeanor is classified as possessing less than 35 grams of marijuana, and a felony is possessing any amount over this limit.

However, while the law was in grams, Amendment 3 says that any charge for possessing less than 3 pounds can be expunged. Three pounds of marijuana is roughly 1,300 grams, allowing many felony charges to also be forgiven.

Once a marijuana charge became a felony, it was simply lumped in with all the other felony drug charges. The county courts, who were given authority over these expungements, couldn’t see what kind of drug was in the offender’s possession without manually looking through every case.

To clarify, people expecting expungements are stuck in limbo. At the same time, court clerks must pull up individual cases and check whether a charge is for marijuana rather than heroin or LSD, for example.

In an interview with the Missouri Independent, Greene County Circuit Clerk Byran Feemster says the process for one expungement takes a little more than an hour for an experienced clerk.

After a case is pulled up electronically or on a written file and checked to ensure it qualifies for expungement, it must be approved by the county judge. If approved, the clerk has to redact the charge from every page of the file. 

The first Greene County expungement was for a case from 1971. It took the clerk about 12 hours to redact every mention of the case on years of docket entries, motions, and filings. Clerks must follow the new language and ensure that the amount in possession for each case wasn’t more than 1,300 grams. 

The Amendment set a deadline for Class D felony charges (possessing 35 grams) to be expunged by June 6, 2023, and Class E felony charges (possessing more than 35 grams) to be expunged by Sept. 4, 2023. The Missouri Supreme Court requested $4.5 million from Governor Parson to employ 500 overtime clerks and attempt to beat the deadline. However, their request was not included in the Governor’s 2024 Fiscal Year Budget.

The money is also meant to go towards hiring two IT contractors that would hopefully develop code that could sort through the files. The Office of State Courts did not respond to The Pitch’s requests for an update on expunged cases. 

State court officials have asked for $2.5 million in a supplemental budget to pay clerks and their employees for overtime hours. At the time of this writing, the House Budget Committee has begun work on the overall supplemental budget.

To hold the courts accountable, Amendment 3 requires an index of cases to be updated throughout the process. Even if the deadlines pass before the courts can get a handle on this situation, every eligible person will be expunged.

The deadline is set in place because expungement doesn’t merely give people a clear conscience, it opens professional, financial, and housing opportunities that have been stripped away, and it is about time they got them back.

“There are a lot of people who will benefit from this. Far more than the ones who are, at this moment, on probation or parole or in jail,” Director of Integrated Advocacy for the Missouri ACLU Tony Rothert says. “People’s lives are on hold during this time while they’re waiting for it to be expunged.”

However, the benefits for those currently on parole or probation cannot be forgotten. In addition to an early end to their sentence and a clean record, it can save offenders hundreds of dollars because Missouri requires offenders to finance their own probation costs. 

These costs can include multiple drug tests, ankle monitors, and classes required for the offender. According to the Department of Corrections, 565 people on probation or parole are eligible for expungement. The financial benefits will be wasted if cases aren’t reviewed before a sentence has been served.

In addition to those on parole, there are 27 people serving time in the DOC who are eligible, but these people aren’t being let off without paperwork. Each incarcerated offender is required to petition the courts. So, once again, an offense that no longer exists is being lorded over people’s lives.

When speaking with Rothert about these hurdles, he was taken aback by the numbers reported by the DOC. When more than 21,000 people have been arrested for these crimes over the past three years, 27 is strikingly low. Many of those entangled in this situation have other charges tacked on to marijuana possession that won’t be expunged by the amendment, for example, having a DUI and a marijuana charge.

“Some people are in [prison] because of a DUI, and they also had possession of marijuana or probation because of domestic violence but also had possession of marijuana,” Rothert explains. “Those are the cases where it’s unclear if they’re being captured.”

The two charges may not be related, but since their marijuana sentencing is tacked on to a crime that isn’t excused by the amendment, offenders don’t have the option to petition.

For the 27 offenders that are eligible, it is unclear what information they are receiving from the DOC about their options or what kind of help—if any—they have received to fill out the paperwork.

Rothert told The Pitch that we had greater success gathering information from the DOC than the ACLU, because they have been trying and failing to ascertain a list of eligible offenders. Whether anyone is providing aid to the 27 folks involved has been a guessing game for parties on the outside.

“There are folks that are concerned about this and want to help process those claims for people who are incarcerated and will be required to file a petition,” Rothert says. “It’s just a matter of identifying folks needing assistance.”

One would expect that the bare minimum for a government entity managing thousands of lives should have the technology to search for offenders by charge, Rothert says the DOC is not equipped for a situation like this. Again, basic spreadsheet/database functionality here could change lives.

Those on probation and parole have direct case supervisors to answer questions about these issues. Not having this kind of individual help makes petitioning for expungement a much more difficult feat for those that are incarcerated.

Now that recreational marijuana has been legalized in Missouri, new rules and regulations must be added and adapted to fit the landscape. For a process already stalling out, this is an unreasonable burden on all those involved. 

To ensure that there was someone studying and organizing marijuana policies, Amendment 3 required a Chief Equity Officer to be appointed before Feb. 6, 2023. Abby Vivas was hired five days before this deadline. Vivas has worked in the Missouri government for over 20 years. Over 18 of those years were spent as a criminalist for the Missouri State Highway Patrol and, most recently, as a Feed Laboratory Manager in the Department of Agriculture.

Vivas is currently developing plans for economic and social equity initiatives, according to her office. This will include a plan to check all of the licensed dispensaries and make sure they are in good standing and remain eligible for a license. This single government bureaucrat is also charged with establishing public education programs that are dedicated to providing communities that were impacted by past marijuana laws with information about the licensing process and support resources.

Due to a lack of forethought when writing Amendment 3 and the snail-like response from legislators to help county courts, offenders are still being barred from many basic rights and freedoms that should be open to them.

Approving a supplemental budget would allow courts to get more cases expunged, and information from the DOC would help the 27 incarcerated offenders get released, but this mess was either created by design or simply the result of deprioritization from a system that is in no hurry to release inmates or surrender small amounts of supplemental income.

Thousands in Missouri are waiting to have their case wiped clean, so they can reclaim citizenhood and an unvarnished record as they engage with employers and their community. How much longer does their waiting game have to last?

Categories: Politics