Marijuana Moment: ‘Hundreds Of Thousands’ Of Missouri Marijuana Conviction Records May Still Exist Despite Deadline To Clear Them, Police Say

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There’s “no evidence of these claims was presented to the circuit court,” judges said.

By Rebecca Rivas, Missouri Independent

Missouri courts were supposed to automatically erase eligible marijuana misdemeanors from criminal records by June 8, 2023, six months after voters legalized recreational marijuana.

But in a recent St. Louis case, the Missouri State Highway Patrol told an appellate court that “hundreds of thousands” of marijuana offenses may still exist on criminal records that should have been cleared.

The patrol offered no evidence to back up that estimate, the Missouri Court of Appeals Eastern District noted in an April opinion. But the case exposed a practical problem with Missouri’s marijuana expungement process: If a court missed an eligible case, it remains unclear what the person is supposed to do about it.

So far, the answers are inconsistent. People whose cases were missed have been told to ask a circuit clerk to fix the issue administratively, file a regular expungement petition or pursue a writ of mandamus. None has emerged as a clearly established statewide remedy.

The appeal involved a St. Louis man identified in court records as D.S., who sought to expunge a 2003 misdemeanor marijuana conviction through a court petition intended for incarcerated individuals. A St. Louis County circuit judge granted the marijuana expungement.

The patrol did not argue that the marijuana offense was ineligible. Instead, it argued that the court had no authority to grant the request through that kind of petition because the constitutional amendment required misdemeanor marijuana expungements to happen “automatically.” Only incarcerated people with eligible marijuana offenses, the patrol argued, had to petition a court.

Allowing such petitions, the patrol argued, would open the floodgates to “hundreds of thousands” of offenses that court clerks have missed and cause “an immense burden” on state courts.

The case itself is a sealed record but the court’s April opinion is a public record, and the appellate judges summarized the patrol’s argument in a footnote.

“While MSHP claims hundreds of thousands of offenses exist that should have been automatically expunged and predicts that allowing persons entitled for automatic expungement to petition would place an immense burden on Missouri courts,” the footnote states, “no evidence of these claims was presented to the circuit court.”

After the underlying case was closed June 4, the highway patrol said it could comment on the litigation.

In an email to The Independent, Capt. Scott White, a spokesman for the highway patrol, said estimates of “potentially eligible offenses were based on the broad language of the constitutional amendment” and based on the agency’s records in its Central Repository.

The Central Repository is where the highway patrol maintains criminal history records reported by law enforcement agencies and courts throughout the state. It now also updates these records when marijuana cases are expunged.

White said the patrol “has no concerns with the petition process when it is conducted in accordance with the amendment’s requirements.”

While the judges agreed with the patrol that “the circuit court exceeded its authority in hearing the petition,” they ultimately sided with the man because the courts were obligated to expunge the man’s misdemeanor by June 8, 2023—the deadline set in the constitutional amendment.

Lee Camp, an attorney with ArchCity Defenders law firm and who represented D.S., said the ruling is already having repercussions.

His organization has been approached by several people whose records should have been expunged but weren’t. Some have since filed petitions in St. Louis County, and their cases have been dismissed due to the appellate court ruling.

John O’Sullivan, spokesman for the St. Louis County court where the expungement occurred, said that’s because the court is interpreting the appellate decision to require that petition to proceed under Missouri’s regular criminal expungement law—not the marijuana amendment’s petition process.

Camp said that interpretation is concerning because under state law the county cites, people can only expunge three misdemeanors in their lifetime.

“I appreciate St. Louis County is trying to clarify a process,” Camp said, “but there’s no way ArchCity could advise any of our clients to burn these statutory expungements on these things.”

The appellate judges agreed and wrote D.S. “should not have to use one of the three expungements permitted for misdemeanors when the circuit court was directed by the Missouri Constitution to expunge the conviction at issue.”

The D.S. case shows, Camp said, the courts have not demonstrated that they have completed expungements. He believes the next step is for citizens to file a writ of mandamus, which would order public officials to complete tasks mandated by law.

Camp added, “This is a mess.”

‘Reach out to your circuit clerk’

The case raises questions about what people are supposed to do if the clerk’s office hasn’t expunged an eligible marijuana judgment.

“If someone feels as if they should have gotten an automatic expungement for a marijuana judgement and did not, they may reach out to the St. Louis County Circuit Clerk’s office,” O’Sullivan said.

O’Sullivan added if the clerk’s office reviews the case file and finds it should have received an automatic expungement, “they will work to get the charge expunged and there would be no need for someone to file a petition.”

If someone still wants to file a petition in a misdemeanor marijuana case, O’Sullivan said the appellate ruling states people need to file it like a regular expungement for a criminal case, and “not the constitutional amendment as that deals with incarcerated individuals.”

Missouri courts have expunged about 155,000 marijuana cases since voters approved the 2022 constitutional amendment to legalize recreational cannabis, according to data compiled by Missouri’s state courts system.

The state court system estimates that about 334,000 cases have been reviewed—which would mean the counties expunged 46 percent of the cases they reviewed. But clerks say the number of cases reviewed is higher because the paper records reviewed and deemed ineligible weren’t documented.

Courts were mandated, as part of the amendment, to search their files for eligible marijuana-related charges and then make it as if they never existed on people’s records.

But what should people do if court clerks missed their case?

Saline County Circuit Clerk Becky Uhlich, who serves as first vice president of the Missouri Circuit Clerk Association, said she would advise people to contact the clerk for the county court.

“Please reach out to your circuit clerk, bring it to their attention, and let them investigate why it wasn’t automatically expunged,’” she said.

In 2023, Uhlich said the court clerks received lists with thousands of potential eligible offenses from the Office of State Courts Administrator.

“Computers generated those reports,” she said. “Computers are not always accurate in those things.”

The lists didn’t include people who were under 21 at the time of the arrest or paper files, which largely end around 2014. For paper records, court clerks have to read summaries for every single criminal record.

The turnaround was also fast, given the amendment passed on Dec. 8, 2022 and the court clerks had six months to complete the task. There wasn’t a specific year courts needed to search back to outlined in the constitution, clerks have previously told The Independent.

However, Uhlich and others have suggested it’s 1971, which was the first marijuana-related drug statutes, based on information the state administrator provided to court clerks.

“This was new territory,” she said. “I was really blessed because I was able to hire someone who had previous knowledge and we met our deadline, but I can’t say that that was the case for every county.”

Joel Currier, spokesman for St. Louis circuit court, said their clerks are continuing to review cases for eligibility.

“Of the thousands of cases that must be reviewed by a limited number of available clerks, it’s possible either some cases have been missed or that they’re

still awaiting to be reviewed,” Currier said. “Anyone who believes they still may have a case eligible for automatic expungement may contact the St. Louis Circuit Clerk’s Office to inquire and our clerks will work to review them as quickly as possible.”

This type of variation from county to county concerns Camp and the ArchCity Defenders, a legal advocacy organization.

“It’s not just about getting the expungement order itself,” Camp said. “It’s really what it means if you’re in the category of people who have not received that mandatory expungement order. That means you’re not enjoying the same privileges as someone that two years ago received automatic expungement in a different circuit.”

The lack of expungement, Camp said, could be the difference between receiving employment, housing and benefits opportunities.

Hundreds of thousands of cases

Dan Viets, an attorney, Missouri NORML coordinator and chair of the advisory board of the 2022 marijuana legalization campaign, estimated last year that hundreds of thousands of marijuana cases may still be on people’s records—in agreement with the highway patrol.

His estimate, he said, was based on FBI crime statistics showing more than 16,600 marijuana arrests in 2018, though not all law enforcement agencies report their statistics to the FBI. A conservative estimate of 20,000 marijuana arrests per year, Viets argued, would mean that the 140,000 expungements so far “represent only about seven years of such arrests.”

While he still believes that there are many older cases that haven’t been expunged, Viets said he’s taken a step back from his initial claim last year—largely because the courts haven’t seen a mass number of people petitioning for expungements. That’s why he disagrees with the highway patrol’s claim in the D.S. case that the courts would be overwhelmed if everyone was allowed to petition for a marijuana misdemeanor expungement.

“It has not happened,” Viets said. “That’s the most persuasive evidence…and we defense attorneys have been filing petitions for expungement since that time.”

Viets also strongly disagrees that circuit courts exceeded their authority to hear D.S.’ petition. Viets has filed a few dozen petitions for clients whose records weren’t automatically cleared.

“It’s just not reasonable to deny people access to the courts,” Viets said.

He also called the part in the decision about the circuit court’s authority “mere dicta,” or statements made by a judge in a legal opinion that weren’t necessary to resolve the case and aren’t binding. The legally binding part of the decision, Viets said, was that the appellate judges found the circuit court’s decision to hear the petition “harmless,” since they were obligated to do it two years ago.

What’s also not written in the Constitution, he said, is people’s right to file a writ of mandamus. It’s something he’s thought about doing to ensure courts complete the marijuana expungements, especially the ones that didn’t search through criminal records past the 1980s and some municipal courts.

“We didn’t say, ‘Yes, you have a right to file a writ of mandamus,’ in the language of [the marijuana constitutional amendment],” said Viets, who helped write the language, “but by God, due process requires that every citizen has the right to file for a writ of mandamus.”

This story was first published by Missouri Independent.

Photo elements courtesy of rawpixel and Philip Steffan.

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