Columbia attorney Dan Viets stands in front of the Boone County Courthouse in Columbia, Mo. Viets has been advocating for the reform of marijuana laws since 1974.

Automatic expungements under Missouri’s new marijuana law are adding up to question marks in the courts and for attorneys processing the expungements.

“I heard a judge the other day say, ‘Well, this isn’t going to be automatic.’ And that’s right,” Attorney Dan Viets said in a Dec. 16 interview. “The courts have to do some work.”

The road to get here

Viets has been involved in marijuana legalization efforts in the mid-Missouri chapter of the National Organization for the Reform of Marijuana Laws (NORML) since 1974. He’s been involved in the organization’s efforts to advocate for laws that benefit marijuana consumers alongside his cannabis law practice as a criminal defense attorney.

Some city ordinances stopped criminalizing possession of 35 grams or less of marijuana early on. To a small degree, local decriminalization decreased the total work that must be done now to expunge marijuana case records under three pounds.

“Those efforts were helpful and they helped to lay the foundation for broader reform,” Viets said.

In 2004, Columbia voters passed a local initiative to decriminalize marijuana possession up to 35 grams and limit prosecution for patients using medical marijuana. In 2017, Kansas City voters elected to issue $25 fines for possessing 35 grams or less of marijuana as a replacement for harsher penalties.

Medical marijuana use was legalized across the state in 2018. The City of St. Louis passed a bill decriminalizing marijuana possession and cultivation for adults in 2021.

Viets noted that at the state level, NORML had been mostly focused on blocking laws that worsened conditions for people who use marijuana until about 10 or 15 years ago, when he noticed a shift in attitudes on medical marijuana in the General Assembly.

“And so our work shifted from trying to stop bills to actually trying to pass bills,” Viets said.

Viets also was involved in The Missouri Bar subcommittee that drafted the re-write of the Missouri criminal code later adopted by the Missouri legislature in 2017. Among other changes, this set aside a prior law that required someone with a third drug offense to serve between 10 years to life in prison without probation or parole.

“I represented a lot of people who were threatened under that law,” Viets said, “and the near threat of a sentence like that often intimidated defendants into pleading guilty when they might have otherwise, you know, challenged the search or some other aspect of their case.”

The small wins added up at the time, including the commuted release of Sedalia man Jeff Mizanskey, who had served 22 years of a life sentence for a third drug offense. The tweaks and overhauls to Missouri’s criminal code over the years also have added up to the largest factor complicating courts’ ability to identify who is eligible for automatic expungements and who can petition for expungements.

Scott Pierson

Scott Pierson of Twibell Pierson Criminal Law in Springfield processes expungements as part of his practice in southwest Missouri, and he also runs a local expungement clinic. He said that while he’s optimistic for misdemeanors and some violations, he doesn’t think the courts will be able to catch all the cases within the time frame.

“I don’t think that’s workable the way the amendment reads, sadly,” Pierson said. “I don’t think the amendment equips the courts to do what’s necessary because the amendment does not correspond directly with Missouri statutory numbers and the criminal code. It makes it tough for them to do that.”

Viets and Pierson were both optimistic about the courts’ ability to process misdemeanors, while the automatic expungements for felonies would be harder to accomplish.

“So the misdemeanors should be relatively straightforward and relatively simple to identify those misdemeanors,” Viets said. “But in the case of the felonies, it will require some time and labor. In other words, individual human beings are going to have to look over the facts of each case and try to determine whether the weight involves three pounds.”

How many cases?

Department of Corrections general counsel Doug Shull spoke in a Dec. 6 CLE panel held by The Missouri Bar.

“If you’re looking at someone who is convicted in 1999, it’s going to be different from somebody from 2021,” Shull said.

That’s the greatest challenge for sentencing courts across the state that are quantifying the expungements they’re responsible for under the new amendment to the state constitution.

The Department of Corrections has released to the public that 565 people in Missouri are on probation or parole for marijuana felony offenses. It also has stated that 27 people may be currently incarcerated and eligible to petition the originating circuit court to vacate a stay of their sentence.

Shull said the DOC was working with other agencies to determine the full number of possible expungements, and he had a rough estimated total as of Dec. 6.

“The numbers I’ve heard is that totally we’re talking about maybe over 700,000 individuals, maybe 3,000-4,000 that are currently being supervised,” Shull said.

Sydney Ragsdale, who runs the University of Missouri-Kansas City expungement clinic and also served on the panel, said the number on current incarceration could be underreported due to the differences in charge codes over time.

“There are very few people who are entered with a marijuana charge code,” Ragsdale said.

Most people are charged with a general possession charge of a controlled substance, which “could be any drug.”

“Those I don’t think they are including in their estimation because they would have to go into every possession of a controlled substance included as ‘99’ and check in the actual case file to see what the drug was,” Ragsdale said. “And I don’t think they’ve been able to do that yet.”

Pierson said the weight element for the constitutional amendment also doesn’t match expungement law directed in the existing statute.

“But the number of [under] three pounds, which is eligible for automatic expungement, is not necessarily something that is in probable cause statements, that is in pleadings on marijuana cases,” Pierson said.

Who can’t get an expungement?

• People who were convicted of violent crimes
• People who gave or sold marijuana to a minor
• People who were found to have been driving a vehicle while under the influence of marijuana

Getting it done

In a Dec. 7 story by the Missouri Independent, St. Louis City Circuit Court Presiding Judge Michael Stelzer said that for automatic expungements, creating a notification system for agencies with relevant case records and people seeking expungements as well as determining how to identify eligible cases under Article 14 was “easier said than done.”

According to Stelzer’s Dec. 8 order, the circuit clerk, the court’s IT department, staff attorneys and the HR Department were ordered to identify offenses that might be eligible for initiative petitions and to prepare expungement orders.

“This review process includes the review of the information and guidance provided by the Office of the State Court Administrator,” Stelzer wrote.

Jackson County Circuit Court Presiding Judge J. Dale Youngs issued an order that same day with similar language relying on the OSCA’s guidance. OSCA declined to comment. It is able to provide a list of codes that courts can use to narrow down their searches to determine expungement eligibility, but it is limited in what else it can do.

St. Louis City Circuit Court Chief Communications Officer Joel Currier wrote via a Dec. 12 email that the court had identified about 2,000 cases for those on probation or parole that may be eligible for automatic expungement.

“The judge has also directed staff and assigned training for those staff members to review those cases,” Currier wrote. “Meanwhile, the circuit clerk is preparing a schedule for clerks and judicial assistants to prepare and enter orders in cases eligible for expungements.”

Jackson County Circuit Court spokeswoman Valerie Hartman stated via email on Dec. 22 that the court found 766 drug cases on parole or probation to be reviewed, with fewer than 10 percent of them determined to involve marijuana. A judge was assigned to the narrowed-down cases to determine that 42 of them were eligible for expungement.

“Court Orders have now been entered in every case eligible for expungement in that initial highest priority category, and the process for expunging those records is currently under way,” Hartman wrote.

The court has moved onto reviewing defendants found guilty of marijuana misdemeanors since 2003, which adds up to 1,037 potential cases that require an official determination of whether they meet expungement requirements. Hartman stated that each case requires careful review of the charges, the determination of what they were guilty of and their final sentence. The cases will then be distributed to judges from cases’ initial sentencing courts.

“We are currently undertaking this major project and managing it with the staff we have,” Hartman wrote. “They are tackling this review in addition to their regular responsibilities.”

While the language of Article 14 states expungement responsibilities for sentencing courts and circuit courts, it doesn’t explicitly state municipal courts. For Kansas City Municipal Court, it wasn’t a question. By Dec. 12, the court finished dismissing more than 500 marijuana cases. That was a week after the law went into effect.

States ahead of and along with Missouri

As someone who participated in the initial conversations of drafting the petition, which included NORML, the NAACP and other organizations, Viets was confident that the courts could get the expungements done.

“Other states have done it,” Viets said. “We’re not inventing the wheel here.”

According to a Dec. 2022 report from The Ohio State University Moritz College of Law’s Collateral Consequences Resource Center, California and New Jersey had automatic expungement of most marijuana misdemeanors and felonies before 2021 and have since expanded those expungements. Connecticut, Colorado, New Mexico and New York also have started issuing automatic expungements to varying degrees along with Missouri.

The report notes that across these states, automation has been hampered by a “lack of standardization of information in records,” “incomplete submissions to statewide criminal justice data repositories,” and “disparate data systems that result in inoperability within and across a jurisdiction.”

“Implementation of automatic clearance has been delayed and hampered by insufficient funding, bureaucratic resistance, and the disorderly state of criminal record systems in most states,” the report stated.

It also noted Missouri has the most expansive expungement law to date.

Funding still loading

Eric D. Jennings is general counsel for The Missouri Bar, who moderated the Dec. 6 CLE and noted the difference between the Missouri Constitution’s latest edition of Article 14, which relies on tax revenue from recreational pot sales, and the filing fee detailed in 610.410, the separate expungements statute.

“The reason the filing fee exists at the level that it is at for 610.140 was because of the need to offset a fiscal note on the legislation in a process that doesn’t necessarily exist in the same manner or doesn’t create the same steps as it does with the initiative petition,” Jennings said.

Viets was more optimistic.

“The money to pay for those labors is going to be generated by Article 14, so I don’t think there’s going to be any real cause for concern,” Viets said.

In a November 2021 State Auditor’s Office fiscal note, the auditor estimated total 2023 tax revenue from pot sales would be about $8.9 million. It projected $46 million in revenue for the following fiscal year. According to the statute, a third of the revenue will go to the courts, but it wasn’t able to quantify how much would be funneled to them.

The Missouri judiciary’s 2024 budget proposal revealed an intention to rely on temporary staff and overtime to fulfill its requirements under the amendment. It requested $2,471,308 in appropriations for the fiscal year 2023. It requested $4.5 million for the following fiscal year. The proposal for a supplemental budget estimated costs to process expungements and automatically vacated sentences within deadlines as well as maintain a special index of expunged cases.

“The expense and equipment costs were estimated for two information technology contractors for a year,” the proposal stated. “The personal services costs were estimated for 500 clerks at the courts statewide working overtime to meet the timelines for expungement of records.”

The budget proposal was based on estimates, not on the actual workload.

Hartman wrote on behalf of Jackson County Circuit Court that the Circuit Court Budget Committee has given the courts an opportunity to apply for overtime pay funds.

“We have applied to receive funding, and if awarded, will utilize it to complete our processes as we continue to work through the various stages of this lengthy project,” Hartman wrote.

Gov. Mike Parson delivers his budget recommendations by January’s end, and the state budget is approved in late May. It runs up against the June 8 date, when automatic expungement begins for completed misdemeanor sentences.

Discussions on appropriations are kicking off this month. As that plays out, Viets and NORML are focused on pushing new laws through the legislature that pad the amendment.

“I think there’s a great deal remaining to be done,” Viets said. “First off, we have to defend what we’ve won from attacks in the General Assembly and possibly in the courts…. One of the things we hope the legislature will do is order that all people serving sentences only for marijuana be released from prison right away,” Viets said.

As of Dec. 21, Pierson is looking out for the 10 people who have reached out to him so far about how the expungement process works and whether they qualify. He’s preparing petitions for automatic expungement, treating it like the Missouri statute that governs driving while under the influence (DWI), “which is an automatic expungement per se, as long as you file the petition, right, and it shall be granted,” as long as the requirements are fulfilled. While experimental, he’s using language from the state criminal code and existing statutes to craft those petitions.

“I think everybody wants to do this the right way and wants to honor the [amendment]. It’s just, how do we do that?” Pierson said. “And we’ll figure it out, it just takes time.”

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