Commonwealth Magazine

The Criminal Justice Reform Act of 2018 expunged old marijuana convictions. But overall, he didn’t do much. A 2021 boston globe story called the provision a “total failure,” noting that only a fraction of those convicted of marijuana had applied for expungement.

One reason may be that most people convicted of marijuana-related offenses have been convicted of trafficking or additional unrelated charges. A first offense of smoking a joint would generally be dismissed even before legalization.

But Josh Daniels, a lawyer representing the The Massachusetts Association of Criminal Defense Lawyers, in a recent court case on the issue, said one problem was that judges were slow to adapt. “A lot of judges have been reluctant to grant expungements, perhaps because expungement law is still new,” Daniels said.

Today, the Legislative Assembly and the Supreme Judicial Court are forcing the hand of judges.

The 2018 The Criminal Justice Reform Act allowed criminal records to be expunged if the underlying conduct was no longer a crime – the main application being possession of small amounts of marijuana. The law, however, left judges with discretion to decide whether to grant expungement based on “what is in the best interests of justice.”

The New Marijuana Fairness right that Governor Charlie Baker signed in August removed that discretion and said a court “must” within 30 days of receiving a petition order the expunging of a record of possession, cultivation or marijuana distribution of a quantity of marijuana that has been decriminalized. If the petitioner or the district attorney requests a hearing, a judge must set out in writing the reasons for granting or denying the petition.

A Supreme Court Judicial ruling on Thursday concerned a judge’s interpretation of the 2018 law.

KW, as the petitioner is referred to in court documents, sought to expunge criminal records resulting from two arrests involving possession of small amounts of marijuana. In 2003, KW was a passenger in a car that was stopped for a traffic violation, and a quick search found a small plastic bag of marijuana on him. This case was dismissed. In 2006, KW was arrested for speeding. He gave police another person’s driver’s license and was found driving with a suspended license and in possession of two bags of marijuana. He pleaded guilty to three counts, including possession of marijuana.

The case files have been sealed. But after the Legislature passed the Criminal Justice Reform Act, KW sought expungement so the records would be disposed of, and not just hidden from public view.

Prosecutors did not object. But a Boston City Court judge denied both requests for erasure, saying erasing the records was not “in the best interests of justice.”

The SJC, in a 28-page unanimous decision written by Judge Serge Georges, overruled the Boston judge, saying the judge abused his discretion.

Although the legislature authorized some judicial authority, Georges wrote that “this should not be understood as granting broad authority.” Instead, he said, a judge has the discretion to consider “rare countervailing factors that the legislature could not accurately anticipate.”

The court found that individuals seeking to expunge records for marijuana-related offenses that have since become legal”entitled to a strong presumption in favor of expungement,” and petitions may be dismissed “only if a significant compensatory concern is raised in opposition to the petition.”

Georges added: “If no substantial compensatory concerns are raised, the judges must grant the motion to strike; if a concern is raised, judges who have chosen to deny motions to strike in response to those concerns must issue written findings as to the basis for their decisions.

The court clarified that the expungement had to be done on a case-by-case basis, so if someone was found guilty of a traffic violation and possession of marijuana, the documents related to the traffic stop could be kept. in the record, but redacted to remove references to marijuana.

The court ruling did not mention the 2022 law change. Legal experts on the Senate Ways and Means Committee say the new law renders the ruling largely moot, since the SJC clarified the 2018 law, but the legislature drafted a new law governing marijuana-related expungements. Under the new law, aAs long as a motion is filed and the cannabis offense is decriminalized, the judge must strike the record.

But Katy Naples-Mitchell, who filed a brief in the case as a staff attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, said the ruling still stands. The new law won’t take effect until November, so the ruling will help people file petitions before then.

Another problem is that the language of the new law is ambiguous since it says a judge “must” grant the petition, but later says a judge can grant or deny it after a hearing. Naples-Mitchell worries that some judges will interpret this in a way that gives them discretion.

SHIRA SCHONBERG

OF COMMONWEALTH

Appointed Oath Keepers: Two Massachusetts political actors – one former Barnstable County commissioner who is running to win back his former seat and the other a member of the Republican Wilbraham town committee – appear in a leaked database listing the group’s members anti-government Oath Keepers, according to an analysis by the Anti-Defamation League. The league claims that appearing in the database is not proof of participation or membership in the Oath Keepers. There were 550 Massachusetts residents in the database, but the Anti-Defamation League only released the names of elected officials.

– West Barnstable’s Ronald Beaty could not be reached for comment, while Wilbraham’s David Sanders said he had no connection with the Oath Keepers since 2009 when he attended a rally and loaned out oath to respect the Constitution. Read more.

Waste ban: Environmental groups say their analysis shows the state is burning or burying materials that could be recycled. The groups estimate that 40% of waste going to landfills and incinerators could be diverted if existing waste bans were enforced. Read more.

OPINION

Legislative dysfunction: John Lippitt of the Massachusetts Progressive Democrats says the end-of-session cram is no way for the Legislature to conduct business. Read more.

FROM THE WEB

BEACON HILL

Newly elected Salem State Rep. Manny Cruz look back to the mentors who helped propel him to victory this week. (Salem News)

MUNICIPAL AFFAIRS

Hampden County DA Anthony Gulluni, Holyoke Mayor Joshua Garcia and Police Chief David Pratt try to reassure residents after the fifth Holyoke murder in 2022. (Hampshire Daily Gazette)

Boston temporarily suspend their residency obligation for bus monitors, cafeteria workers, 911 dispatchers and other lower-paying positions, the city has struggled to fill. (Boston Herald)

WASHINGTON/NATIONAL/INTERNATIONAL

Queen Elizabeth II, who ruled for 70 years, during ‘tectonic shifts’ in Britain’s world position, died aged 96. (New York Times)

Police in Las Vegas Stop a county official in connection with the stabbing murder of a Las Vegas Review-Journal journalist. (NPR)

Michigan Supreme Court give the green light voters in November to decide whether abortion protections should be added to the state constitution. The court held that irregular spacing on some of the ballot petitions should not disqualify the issue, with one concurring opinion calling the opponents’ argument a “game of gotcha gone seriously wrong”. (New York Times)

ELECTIONS

A Berkshire Eagle editorial applauds Timothy Shugrue’s victory in the Democratic primary for the Berkshire DA and Thomas Bowler’s victory in the Sheriff’s primary, but laments the tone of the campaigns, especially comments from current DA Andrea Harrington and Sheriff’s challenger Alf Barbalunga.

Massachusetts voters strongly kissed postal voting, with 529,000 postal ballots cast. (Salem News)

Maura Healey tracks Geoff Diehl by 18 points in a new Emerson College/WHDH poll. (MassLive)

Former Republican Governor Jane Swift approved Republican Anthony Amore for the listener but no other GOP candidate. (MassLive)

TRADE/ECONOMY

Prominent Developer David Ward default values on two mortgages for high-end properties in Pittsfield, meaning the projects will be auctioned off. (Berkshire Eagle)

Massachusetts Gaming Commission regulators say it will be take the time to put in place the rules governing sports betting. (MassLive)

EDUCATION

Holy Cross College released an investigative report into the factors that allowed faculty members to engage in decades of sexual misconduct. (Telegram and gazette)

TRANSPORTATION

The biggest test of MBTA’s orange line shutdown arrived yesterday, with the first day of classes for Boston Public School students, and things went as planned. (boston globe)

MBTA Officials hear concerns about dangerous conditions at a level crossing in Gloucester. (Gloucester Daily)

ENERGY/ENVIRONMENT

A judge deals a blow to General Electric, ruling that he infringed another company’s patent rights in the development of the huge wind turbine the company planned to use in its Vineyard Wind I project off New Bedford. (New Bedford Fire)

CRIMINAL JUSTICE / COURTS

The State Republican Party remains embroiled in a legal battle over his business activities. (Salem News)

MEDIA

University of California Berkeley Graduate School of Journalism starts a $25 million state-funded program to fund 40 fellows a year to work in newsrooms in communities desperate for local news coverage.

Chris Krewson of Lion Editors send a letterr to its members explaining why legislation in the United States and Canada to help news organizations won’t help local news.

New Jersey-based Cherry Road Media bought Gannett’s four central Massachusetts weekly newspapers. (Media Nation)

PASSAGES

Meet the author

Bernard Shaw, CNN’s first chief anchor, at 82. (NPR)

Barbara Ehrenreich, best known for her searing account of the indignities of low-wage work in the United States, Nickel and Dimed, died aged 81. (The disconcerting)

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