Colorado Makes Slow Move to Erase Old Pot Convictions

DENVER (CN) – Seven years after becoming the first U.S. state to legalize marijuana, Colorado continues to struggle with what to do about old pot convictions.

“I’m running out of time,” said Pedro Ortiz, a New Jersey man who recently lost a job over a decade-old dime bag conviction in Colorado.

Ortiz moved to the Denver suburb of Aurora in 2008, taking a job as a cook. After a divorce and the death of his mother, Ortiz said he felt alone and fell on hard times.

“I fell into a darkness,” he said. “I started doing some drugs. I was not doing good out there.”

He says things are different now.

“Now, I’m just trying to get on with my life. I take full responsibility with what happened but this is ridiculous,” Ortiz said as his expungement petition circulates the court system. “I don’t know the system and how it works. Are the judges debating it? Can they see who I am? They should look at the case and see people there.”

It is now legal for adults aged 21 and over to possess up to an ounce of marijuana in Colorado. A 2017 law allows people with prior convictions for marijuana possession to seal their records in cases where what they were charged with is now legal. Denver and Boulder counties have set up legal clinics targeting the issue and waived the $65 filing fee for petitioners.

“When marijuana was legalized in Colorado, there were still people who had convictions from years prior for conduct that would be legal today,” Boulder County District Attorney Michael Dougherty said in an interview. “As a matter of fairness, those people should no longer carry with them what I would call the collateral consequences of those convictions.”

Colorado voters enacted Amendment 64 in 2012 legalizing recreational marijuana and eliminating one of the most prosecuted crimes from the legal system. According to a 2012 FBI report, 658,231 people were arrested for marijuana possession nationwide and 92,593 others were charged with selling or growing marijuana. By comparison, 521,196 people were arrested that year for committing violent crimes.

Dougherty estimates 4,000 residents of Boulder County are eligible to have their charges removed and records sealed. After running two free legal clinics, his office met with 21 individuals and found 9 eligible under the program.

Of 10,000 potentially eligible persons, Denver has received 176 applications since Jan. 1, of which 38 are eligible to have records sealed.

By contrast, the San Francisco, California, District Attorney’s Office expunged 9,362 criminal records last month after deciding to automate the process. California legalized the use and sale of recreational marijuana in 2018.

“California’s state statute is arguably the most progressive as it does not place the burden on those convicted to petition the court, but instead mandates the state to review prior criminal convictions and to automatically expunge those cases that are eligible,” said Paul Armentano, deputy director of the marijuana advocacy organization NORML.

“Thousands of citizens carry the undue burden and stigmatization of a past conviction for behavior that is no longer considered to be a crime,” Armentano added. “Our sense of justice and our principles of fairness demand that officials move swiftly to right the past wrongs of cannabis prohibition and criminalization.”

Criminal convictions affect a person’s chances of securing a loan, a job, housing, admission into college, and even clearance by the Transportation Security Administration.

“I think there’s anxiety any time they’re sitting down for a job application or interview,” said Denver criminal defense attorney Brett Eliasen. “You don’t know when you’re going to be blindsided in an interview, you don’t know if they’re just going to say ‘Oh, you smoked pot when you were 18? Sorry.’”

Commercial truck driver Ivan Newborn recalled the relief when his records were sealed this past October. 

“By me having those on my record, it was always in question of was I going to jeopardize my job because I wanted to get high,” said Newborn. “[Employers] think of Cheech and Chong, like you freelance, you don’t take nothing serious, and you’re probably going to be late everywhere.”

But critics of expungement say that is exactly the point.

“As an employer who has hired attorneys, police officers, firefighters and other sensitive positions, quite frankly I want to know if that employee has willfully violated the law at some point in their life, even though that law is not still the law,” said Colorado Springs Mayor John Suthers, formerly the state attorney general. “It says something about them that I want to know before I hire them.”

Others argue lasting criminal records unnecessarily lengthen the punishment.

“Damage has been done, especially if someone has served time in jail or in prison for these marijuana misdemeanors,” said marijuana attorney Abbey Moffitt. “I don’t know if it’s ever going to be enough, but it certainly is a way forward and it’s a way to prevent further damage from being done.”

Attendees of Boulder’s “Moving On From Marijuana” clinic this past January received help navigating the legal system, which can be difficult and expensive for outsiders. Many attorneys charge up to $2,500 for their services. 

“I’m here on behalf of my adult son who isn’t able to appear on behalf of himself,” said Jan V., who read about the legal clinic in the Longmont Times Call. Jan, who asked that her last name not be used, said her son’s case occurred in 1998 when he was 18.

“I think it’s a really great service because the process to attempt this on your own, you can see the stack of papers I’ve got here,” Jan said, holding up a stack of documents as thick as a book. “I’ve attempted this for years. I’ve come to the information and help office downstairs twice before, but then I got lost in the paperwork, so having this all done in one shot in wonderful.”

A case might be made for expunging marijuana cultivation or distribution charges, but Colorado law only allows expungement of minor-in-possession convictions involving less an ounce.

The night Pedro Ortiz was arrested and charged with marijuana possession, he was driving his friend’s car and got stopped for speeding.

“The cops wanted to search the car, and I said I don’t care, I have nothing to hide, but in the back they found a dime bag; that’s $10 worth of weed.”

Ortiz paid a $235 fine on top of $300 for bail and thought the whole thing was behind him until a criminal background check for a school maintenance job unearthed the old conviction. He lost the job and his apartment.

He hired a lawyer, and a month later Judge John Wheeler of the 18th Judicial District found “unwarranted, adverse consequences to the defendant outweigh the public interest in retaining the records” ordered Ortiz’s records sealed.

“It feels great, I’m so happy that they did seal it,” Ortiz said. “I’ve got to send my attorney a fruit basket or something.”

He added: “Back then, I was 33 and I should have known better, but it wasn’t my car so I didn’t think anything was going to happen. I wish it would have never happened, but I learn from my experiences both good and bad.”

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