Cannabis is now legal, but getting old convictions expunged is still a process

While Montanans voted to legalize recreational marijuana by a wide margin in 2020, that didn’t erase the criminal records of people who’d previously been convicted of something that is no longer a crime. And while other states that legalized adult-use marijuana have created systems by which prior marijuana convictions are automatically cleared, attorneys say Montana’s method is unnecessarily cumbersome, which means few people are actually pursuing expungement. 

The Montana Supreme Court recently tried to streamline the process for people seeking to clear their name, or at least get a past conviction reduced, such as from a felony to a misdemeanor or civil infraction. The state Supreme Court said it’s even possible to try to expunge a past conviction without hiring legal help — though some attorneys advise against that. 

Bozeman attorney Herman Watson said he’s helped dozens of people in the last year or so (for free in some instances) get cannabis convictions expunged or redesignated from a felony to a misdemeanor. He believes the burden should be on the state, not the individual, to expunge cannabis convictions. In other states, including New York, expungement for certain offenses such as possession or even selling the drug happens automatically. 

“It’s frustrating, because I’ve only done a few dozen of these cases and I know that is the tip of the iceberg,” Watson said. “There are thousands of people who could petition to have their record expunged.”

Watson hypothesized that the reason Montana didn’t enact an automatic expungement system alongside legalization was that it would have cost the state huge sums of money. That suspicion was echoed by Pepper Peterson, president of the Montana Cannabis Guild. He said he’s heard anecdotally of few people actually going through the process of getting their records cleared. He said he thinks that’s because the damage of the original conviction has already been done, or that they’ve just moved on and learned to live with it. 

But Martin Judnich, an attorney in Missoula, encourages people to take the time to get their conviction expunged, especially if it’s the only thing on their criminal record.

“If that’s someone’s only felony, then they should absolutely get it expunged,” he said. “Getting it expunged could restore someone’s civil rights, and that’s a really big deal.”

Judnich said he’s had mixed results in getting clients’ pre-legalization cannabis-related charges expunged, and that the experience has varied from court to court. People interested in having their conviction expunged have to file the request in the court they were originally charged in, and county attorneys have a certain amount of time to respond before a judge will consider it. In some instances, county attorneys don’t respond to such requests, leaving it to the discretion of the judge. Other times, county attorneys recommend that the conviction should not be voided, or should instead be redesignated. Judnich said the process of getting a charge expunged sometimes drags out because a judge may not have dealt with such a request before. (In 2017, the state Legislature passed a law allowing for the expungement of certain misdemeanors.) 

Earlier this month, the state Supreme Court issued guidance in hopes of streamlining the process. The court also published forms on its website to help people seek expungement without hiring an attorney.