What you need to know about cannabis-crime expungement in Minnesota

It may be at least a year until misdemeanor pot records no longer pop up during a background check.
It may be at least a year until misdemeanor pot records no longer pop up during a background check.

By Kim Hyatt Star Tribune

July 28, 2023

Automatic expungement of nonviolent, low-level cannabis crimes will be a slow burn.

With the legalization of recreational adult-use cannabis beginning Tuesday, misdemeanor marijuana-related cases will be automatically expunged, while some people with felony records may be eligible for expungement if they go before a new board.

But don't expect it to happen overnight. It may be at least a year until those misdemeanor pot records no longer pop up during a background check. Officials at the Minnesota Bureau of Criminal Apprehension (BCA) overseeing expungement knew about this lag time ahead of lawmakers casting their historic vote.

The BCA is still finalizing contracts and lining up the technology infrastructure to begin expunging tens of thousands of cannabis records. Until then, misdemeanors qualifying for automatic expungement will remain on a person's criminal record until the work is estimated to be complete by Aug. 1, 2024.

Here's what to know while we wait.

What is expungement?

The word suggests a case is wiped clean from a person's criminal record, but technically it's just not available for the general public to see. These sealed cases can still be seen and reopened for court-related matters and background checks for jobs in criminal justice agencies, human services and education.

Minnesota has a long history of common law with respect to expungements, according to a William Mitchell Law Review. In 1977, the Minnesota Supreme Court decided the court has the equitable power to seal a record to redress an infringement on constitutional rights. And in 2015, legislation made it easier to expunge certain crimes — albeit with barriers — but it typically requires action by the subject of the court record.

Why did Minnesota want this rolled into pot legalization?

Cannabis convictions can prevent people from obtaining work and housing. Expungement, especially the eventually automatic kind, is widely believed to promote racial equity as people of color are five times more likely than white people to be arrested for possession, despite similar rates of marijuana use.

"Automatic expungement is a critical component of leveling the field a bit because the enforcement of these laws didn't affect everyone equally," Minnesota Department of Corrections (DOC) Commissioner Paul Schnell said. "I think it's hard for those of us who have not had criminal histories to appreciate what this can mean. ... This is a really important part of the policy overall and will positively affect a lot of people."

Did other states do this when they legalized weed?

Yes. The National Organization for the Reform of Marijuana Laws (NORML) lists 11 other states that automatically expunged qualifying convictions. Another 14 states made the process available for eligible offenders or certain cannabis-related convictions.

How many pot records will be automatically expunged?

The BCA says 66,000 misdemeanor or petty misdemeanor records are in queue. Of those, nearly 57,000 have already been dismissed — but even a dismissal appears on a person's public criminal record. With expungement, that dismissal will disappear, too.

What about felony records?

An additional 230,000 felony records will be eligible for review by a not-yet-created state advisory board dubbed the Cannabis Expungement Board. Felony cases involving weapons or violence will not be eligible. Schnell at the DOC, which supports the operations of the board, said they hope to hire an executive director within a couple of months and have the board operational by mid-2024.

The governor will appoint the director, and board members include people appointed by the state Supreme Court chief justice, Minnesota attorney general and a public defender designee, along with a member of the public, according to the state's cannabis site.

That's a lot of felony pot cases!

Schnell said the number isn't that shocking when looking at the history of over-policing communities of color and systemic racism. Someone could rack up multiple marijuana-related charges in just one case, or have multiple cases on their record over time. But there's been a shift in law enforcement, he said, with one or two people in prison at any given time for selling or possessing massive quantities of pot.

How do I know if I qualify for expungement?

All misdemeanor and petty misdemeanor convictions qualify for automatic sealing of records. If your cannabis charge resulted in dismissal or stays of adjudication — which keeps a conviction off your record if you remain law abiding on probation — that qualifies as well. Those with felony cases can apply with the board once it's established.

How far back do these records go?

The BCA says criminal history records are kept for 100 years.

Can I manually expunge my record?

Yes, but maybe you should pass on that. The BCA said depending on volume and staffing, the normal processing time — up to six months — could be delayed further.

Some county courthouses (Hennepin, Ramsey and Washington) and legal clinics offer resources for going the manual route, but it's complex and often costly. Automatic expungement is free and less complicated than navigating on your own or with an attorney.

The expungement paperwork can be found on the Minnesota Judicial Branch website.

Will I be notified when my record is expunged?

Nope. The BCA said it cannot notify people once their record has been expunged. It says the new automated system doesn't have contact information to notify people about changes to their record. You can see if your case was sealed at a local courthouse, using the public computer terminal to search by name.

Remember, give it a year and check the Star Tribune for future cannabis-expungement coverage.

The Star Tribune would like to talk to people who have been convicted of marijuana crimes. We're interested in knowing what expungement means to you. If you're interested or would like to learn more, please include your contact information below.

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