Walling Off

More than 150,000 New Mexicans appear eligible for the automatic expungement of their past cannabis possession charges under a bill Gov. Michelle Lujan Grisham says she’ll sign, according to a preliminary review by the state Department of Public Safety.

The previously unreported figure illuminates the scope of the drug war's impact on state residents. Many of them have struggled to secure housing, jobs and even federal student loans because of charges and convictions for offenses that will no longer be crimes under the provisions of a companion bill that legalizes the recreational use of cannabis for adults.

Lawmakers adopted both bills during a special session that ended April 1.

The number—154,791, to be exact—is far greater than previously believed, too. Legislators speculated that perhaps 4,000 people had been arrested annually for cannabis possession in recent years.

The job of expunging—essentially walling off a criminal record from public view—will fall largely on DPS. Interim Secretary Tim Johnson and Records Bureau chief Regina Chacon acknowledge in an interview this week with SFR that it's a big, complex lift. And the clock is already ticking.

But they say the department is up to it.

"I believe we're going to get it done," Johnson says. "We get a lot of things on our plate over the years; we haven't knocked all of it out of the park, but we do the best job we can."

Expungement has long been an essential element of legalization for advocates and their allies in the Legislature, which passed a law in 2019 allowing people to petition a court to have certain past charges and convictions wiped.

They see it as righting past wrongs of the criminal justice system, which have fallen disproportionately on poor people and communities of color.

This year's legalization push went a step further, proposing automatic expungement for old cases in which the charge involved possession of 2 ounces or less of cannabis flower or 16 grams of extract. That provision was part of House Bill 12, which also laid out the regulatory framework for legal cannabis, during the 60-day session and was part of the reason that bill failed to cross the finish line when lawmakers went home on March 20.

So, for the special session, sponsors decoupled expungement and ran it as its own measure. Senate Bill 2 spelled out the work ahead to do away with past cannabis records, provided they meet the threshold of what will now be legal under the terms of House Bill 2, the legalization proposal.

A spokesman for Lujan Grisham says she'll sign both bills, though he did not say when.

Under SB 2, the public safety department has until Jan. 1, 2022, to identify all cases eligible for expungement. (On a parallel track, the department must identify anyone who is still incarcerated for cannabis possession so that courts can reopen their cases for possible resentencing. The Corrections Department estimates that's about 50 people in New Mexico prisons, none of whom is locked up for marijuana possession alone; it is not clear how many people are languishing in the state's 28 county jails on possession charges.)

From there, DPS must notify the courts, district attorneys' offices and the Law Offices of the Public Defender of which cases should be expunged. Prosecutors have until July 1, 2022 to challenge individual expungements; if they don't, DPS must get to work.

"It's a lot more complicated than just hitting delete," Chacon of the DPS Records Bureau says, adding that even the identification process requires scanning multiple databases that don't always play well together.

Neither SB 2 nor the "feed bill" passed during the special session to send $6.9 million from the general fund to public safety, regulatory agencies and the courts for the new cannabis rules includes an appropriation for DPS' increased workload on expungement.

Johnson, the interim secretary, concedes his department may incur some overtime costs.

"We currently do not have people assigned to this," Johnson concedes. "We do have some plans internally to adjust some of the folks that we have in the Law Enforcement Records Bureau to go over there and help with the expungement piece until we can get in front of the Legislature again next January, where I will be asking for some additional personnel…to make sure we can maintain this."

Once it's clear which cases must be expunged, maintenance entails marking them in the DPS repository, the department's fingerprint identification system, two federal databases and contacting local law enforcement agencies to ensure that the record isn't locatable in any of those spaces, Chacon says.

"It's multiple hands that need to be organized to get an expungement done," she says.

Jennifer Burrill, supervising attorney for the Santa Fe public defender's office, says the new expungement law will, in theory, help countless current and former clients access parts of the American dream that had previously been unavailable to them.

“But just having the piece of paper saying your charge has been expunged is not the end,” Burrill tells SFR. “DPS still has to do its job.”