Cannabis De-conviction

State senator wants past possession raps scrapped in broader legalization package through optimistic reading of case law

A state senator says he’s got a “provocative,” “novel” idea for wiping out past cannabis possession convictions as part of a broader push for adult-use, recreational legalization the Legislature is expected to take up during the session that began last week.

It's called a "legislative pardon," and Sen. Daniel Ivey-Soto, D-Albuquerque, believes the New Mexico Supreme Court cleared the way for it in a narrow corner of a decade-old firearms case involving federal agents and the Deming family of James Reese.

"When I read [the court's opinion], I thought: 'Holy shit, that exists?'" Ivey-Soto tells SFR. "What I want to do is a legislative pardon as to the specific convictions of [cannabis] possession."

The state constitution is clear that only the governor has the power of the pardon. And SFR's examination of the Reese case finds that Ivey-Soto's reading may be overly ambitious.

The court recognized that a "deferred" sentence—in which someone completes a set of court-mandated tasks to get rid of a conviction—is effectively a legislatively created pardon carried out by a judge. But it did not appear to recognize a broader power for the legislative branch.

Still, the influential lawmaker who chairs the Senate Rules Committee, is certain his way can work and that it's better than expungement, the mechanism for doing away with convictions offered in the 2019 and 2020 proposed cannabis legalization bills. Expungement is essentially shielding past convictions from public view, and New Mexico enacted a law allowing people to petition courts for it in most cases in 2019.

"I want to be very clear: That's not what I'm talking about in terms of what I want to see for prior convictions," Ivey-Soto says. "I want these people to be de-convicted. Let the court file still be public, but have the court file now say that this conviction has been vacated, and they don't have a conviction on their record."

It's not clear whether Ivey-Soto's idea will make it into proposed legislation. That's because, as of presstime, the public has not yet seen a bill as the 55th Legislature rolls into the second week of a session like no other. Advocates, legislative supporters and likely sponsors tell SFR that legalization proposals will look a lot like they did in recent years: two ounces of flower and 16 grams of extract legalized and with regulatory frameworks for the proposed new industry, protections for the state's medical cannabis program and tax structures all spelled out.

Without a path to scrapping old convictions, though, any bill will be stuck in the mud.

Emily Kaltenbach, state director for the Drug Policy Alliance, has been working with legislators on this year's bill. She sums up the must-have component in an interview with SFR last week, pointing out that people with cannabis convictions are often barred from receiving student loans, housing and certain jobs.

"For nearly 50 years, we have been operating under this failed war on drugs that's devastated the lives of thousands of folks in New Mexico. Much of that is the result of cannabis," Kaltenbach says. "And so if we are going to legalize a substance that has been illegal, we need to right those wrongs. That means we need to automatically get rid of those criminal records so that a past does not haunt people into the future."

Rep. Javier Martinez, D-Albuquerque, agrees. He says he'll sponsor a House bill for legalization, and any attempt to remove or weaken sections that wipe out past possession convictions would amount to a "deal-breaker."

Martinez says he hasn't spoken to Ivey-Soto about the "legislative pardon" and adds that it's not included in the legislation he's drafting and hopes to introduce this week. He calls the idea "intriguing."

The Legislature has now lumbered past the half-decade mark in the fight for cannabis legalization.

It was doomed from the jump when, in 2015, then-Democratic Rep. Bill McCamley made the first attempt. His bill was assigned to five House committees and, had that and other insurmountable mountains been conquered, New Mexico's prosecutor-in-chief, former Gov. Susana Martinez, was waiting in the wings with a veto pen.

Every year since, the push to legalize has come a little closer to reality. And now, in 2021, supporters may have their clearest path yet, with a leftward turn in the Legislature's freshman class and an eagerness to sign legislation from Democratic Gov. Michelle Lujan Grisham.

New Mexico would join 14 other states and Washington, DC, in full legalization. Many of those have included some version of relief for past convictions in their legalization schemes; California, Illinois, New Jersey and New York have the most sweeping, according to the nonprofit Collateral Consequences Resource Center.

None has used the legislative pardon route and neither, for that matter, has the New Mexico Legislature sought to exercise that kind of muscle in any context before.

However lawmakers decide to propose clearing past convictions, there are other potential hurdles lurking. For example, the Administrative Office of the Courts noted in a fiscal impact report attached to the 2020 legalization bill that identifying each person eligible for relief under the expungement proposal would be labor-intensive and could cost more than $1 million.

The office could not tell SFR how many would be eligible this year, either, but Artie Pepin, director of the Administrative Office of the Courts, says in a written response to questions that requiring the courts to identify people whose cannabis convictions should be wiped would create a "significant workload increase."

"It is difficult to estimate the impact on the courts until we see a specific piece of legislation and are able to analyze it," Pepin writes, adding that some records, particularly in closed misdemeanor possession cases, might no longer be around.

Another provision expected to make a return this year: Anyone still serving time in prison, jail or probation for offenses that would no longer be crimes if a legalization bill passes gets to go home.

Eric Harrison, spokesman for the state Corrections Department, says 53 people are serving time in New Mexico prisons with cannabis possession convictions—but none of them is locked up on that charge alone. It is not clear how many of those people would be eligible for resentencing if a legalization bill makes it into state law this year.

Kaltenbach of the Drug Policy Alliance says her organization has collected data showing about 3,000 people are arrested in New Mexico each year on cannabis-related offenses, with most of those being possession charges. The numbers are going down since the state decriminalized possession in 2019, but they're still too high, she says.

"The people who have been criminalized for cannabis for generations have mostly been Black, brown, Native and Indigenous in our state," Kaltenbach says, adding that this year's bill should create an avenue for people's records to be automatically cleared. The Expungement Act, which became law in 2019, already offers the opportunity to petition to have crimes that are still crimes wiped.

"What's different here is that that activity is no longer a crime, and so that burden should fall on the state," Kaltenbach says of cannabis possession.

Ivey-Soto says the best solution is the legislative pardon, which would maintain a transparent system that doesn't keep convictions secret, but acknowledges that the state has done away with them.

If his idea makes it into state law, a challenge based on the senator's reading of the Reese firearms case would surely be forthcoming. The Supreme Court's ruling was limited to deferred sentences, which James Reese received, and served only to restore his right to run for public office.

"The New Mexico Legislature established the deferred sentence as a means of judicial clemency," then-Chief Justice Richard Bosson wrote in the unanimous 2014 opinion. "Stated another way, deferring a sentence is an act of judicial clemency while a gubernatorial pardon is an act of executive clemency; and they are the same in legal effect."

Ivey-Soto says he recognizes the novelty of his idea and hopes to cook it into state law so that it can't be easily undone.

“At the end of the day it’s the judicial branch of government that gets to decide if it’s gonna recognize” a legislative pardon as Ivey-Soto sees it, he says. I don’t want to do it in a manner that gives rise to questions about the nature of the power of the legislative pardon. We would never know if we didn’t try it.”

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