An executive order signed by Gov. Jared Polis this week officially pardons 2,732 marijuana-related convictions. Those eligible — though few — stand to benefit from the first sweeping forgiveness of marijuana convictions at the state level since Coloradans voted to legalize recreational cannabis in 2012.
The number is likely a fraction of those who still carry a criminal record for marijuana possession. Almost 13,000 people in Colorado were arrested for marijuana possession in 2012 alone, according to state data. And while arrests for possession may have dramatically dropped since then, the lasting effects of a conviction linger for years, even though possession is no longer a crime in Colorado.
To qualify for a pardon, the requirements were many. Only possession charges of 1 ounce or less qualify — although the law passed in this year’s legislative session authorized forgiveness for up to 2 ounces. The cases also had to occur in a state court. Usually, such cases rarely reach a state court, and Polis’ order specifically excludes those convicted of marijuana-related crimes in lower courts. Individuals can check to see if they’ve been pardoned on a new state website.
Back in June, Polis signed into law HB20-1424, which established his narrow pardon power when it comes to certain types of cannabis convictions. The legislation also established a “social equity license” meant for those who are low income, or have been arrested for marijuana in the past. The license grants such applicants certain advantages if they choose to open up marijuana businesses of their own.
Jordan Wellington, of the law firm VS Strategies, was among those who helped craft this legislation. He said the original goal was to establish an automatic program to clear criminal records.
“We always believed that this pardon was really the first step in helping address the collateral consequences of cannabis prohibition, but that it’s not the final step,” he said, adding that his firm is already working on legislation for next year’s legislative session.
Criminal convictions of any kind can have a lasting impact on one’s ability to get a job, secure housing, obtain federal student loans, or fulfill other basic needs.
Many states that adopted large-scale forgiveness of marijuana convictions have relied on a tool often referred to as “expungement,” which is the process of completely clearing a conviction from someone’s criminal record. The mechanism doesn’t exist in Colorado, and the closest thing — sealing a record — requires people to petition the court proactively to have their record cleared. That process can be costly, and in the end, still leaves criminal records visible to law enforcement and prosecutors.
“So your landlord, if you were trying to rent an apartment, or your prospective employer, if you were trying to get a job, might not be able to find that,” Wellington said. “But a prosecuting attorney may be able to find it if they want to use a previous conviction as a sentencing enhancer in a future case, or there are issues with parental rights and things of that nature.”
Expungement or sealing — either method can rely on a complex back-and-forth between state district attorneys and judges. That’s why several cities in California have come to rely on an algorithm written by Code for America to locate eligible cases and streamline the process. It’s something that took years to set up. And while pardons from the governor aren’t quite the same thing, Wellington says it’s still much more expedient.
“Any type of auto-sealing program or auto-expungement program would take a significant time, several years to implement,” he said. “Whereas the governor’s office in a few months was actually able to help almost 3,000 Coloradans live a better life.”
Wellington acknowledges that pardons are not a perfect solution.
“The reality is that a pardon is kind of the most limited of the three,” he said, comparing it to record sealing and expungement. “A pardon leaves your criminal record intact, but in your record also notes that the governor did pardon you.”
The choice of affording pardon power to the governor here in Colorado is a unique one, because it takes all of the responsibility off of the individual. The onus is instead on the governor’s office to locate eligible cases and complete the legal legwork necessary to determine eligibility. No one needs to apply for a pardon, they simply need to meet the governor’s muster.
