New Mexico became the 18th state to legalize adult-use cannabis in 2021, and while residents are clearly enjoying the new reform, topping more than $300 million in the first year of regulated adult-use cannabis sales, there are still some glaring gaps to attend to.
Notably, lawmakers introduced criminal record expungement as part of their aims in creating the state’s recreational industry and decriminalizing cannabis. However, that process has since hit a snag, with some people forced to kickstart their own expungement starting June 16, according to a KRQE News report.
According to Celina Jones, the general counsel at the Administrative Office of the Courts, 14,000 cases have already been expunged, and the charges “were very clear that they involved cannabis or marijuana.” Jones clarified that these cases were able to proceed with an automated expungement.
Additionally, the office identified tens of thousands of other cases that may involve charges eligible for automatic expungement, but the problem is that many of these records are more challenging to review.
Namely, some records are older and not in the court’s current automated database. Additionally, cannabis charges could be mixed in with other criminal offenses. Jones said that, under a new law passed this year, the state is no longer responsible for initiating automatic expungement in these “mixed” cases.
The state must still automatically expunge simple cases, but among more complex cases with other charges, it’s up to the individual to ask the court to expunge their cannabis record.
House Bill-314, which was later passed by both chambers and signed by Grisham, amended the state’s existing cannabis expungement law, permitting residents with past cannabis convictions to “to verify whether automatic expungement has occurred and request expedited automatic expungement if eligible charges have not yet been expunged.” The bill was sponsored by Rep. Andrea Romero (D-Santa Fe) and Speaker Javier Martinez (D-Albuquerque) and amended the original cannabis expungement law passed in 2021.
“It’s so important and critical, when we put [the 2021] law into practice, that it was automatic – that folks didn’t have to opt-in to something to get their record cleared, that we were the ones who were going to do that for them,” Romero told KRQE News.
Romero specified that people with complex cases are still able to get their charges expunged under the amended law, but individuals will need to initiate the process instead of the state’s criminal justice system.
Speaking with the outlet, University of New Mexico Law Professor Serge Martinez highlighted the need for automatic expungement. Of course, it’s important that individuals still have the means to expunge their own cases, but Martinez argues that states must go further.
“It is not just a nice thing to do. It is literally, I think, an obligation of the same state that used its resources to punish people for something that we now say is not a crime to then go back and remove the consequences of that,” Martinez said. “The state has compared to any individual, massive, massive amounts of resources.”
Martinez also said that while the outcome might be the same in a number of cases, an opt-in process is distinct from a fully automatic expungement process. Specifically, “You lose so many people, and so many of the benefits that come from that, when you make people opt in,” he said, especially since many New Mexico residents don’t have reliable access to the internet.
This can be highly impactful, as a cannabis charge can still impact someone’s ability to get a job or rent a home. In some cases, individuals can have a criminal record without ever being tried in a court of law.
“To me, it’s sort of astonishing that if you get arrested and then acquitted or the charges get dropped, that’s still on your record. It’s still public record,” Martinez said. “It should not be on you to undo that.
For those with more “complex” cases, Jones said that the courts will soon have an online portal for individuals to request expungement. The portal will be “a simple, one-page request,” according to Jones, who said it should be “simple, straightforward and accessible to anyone — and free.”
Lawmakers have also hinted that the expungement process could shift in the future.
Democratic Senator Jerry Ortiz y Pino suggested that the law may need to be adjusted, saying, “We may need to revisit this. I’m concerned that we may have, without meaning to, really slowed down the process of expungement.”
