Thousands of cannabis convictions set to vanish, Focus shifts to narcotics traffickers
As New Mexicans 21 or older step into retail shops to legally purchase cannabis for recreational use, tens of thousands of people in the state still have cannabis-related convictions on their records. That’s set to change, though.
In April of last year, Gov. Michelle Lujan Grisham enacted new laws that legalized the use and possession of cannabis and called for the automatic expungement of previous cannabis-related criminal records.
The new law requires that many charges and convictions related to cannabis — like charges stemming from possession of weed or paraphernalia — be automatically removed from law enforcement and court databases that are accessible to the public.
Prior to the new law, expungement of cannabis convictions was possible, but it required anyone with charges or convictions to file a petition in court, a process that was often “costly and confusing,” according to Emily Kaltenbach, senior director of the national nonprofit Drug Policy Alliance.
The new law is designed to initiate eligible expungements without individuals having to file any paperwork or pay any court fees.
“New Mexico now has one of the best automatic expungement laws for cannabis in the country,” Kaltenbach said.
The New Mexico Department of Public Safety has identified around 155,000 arrests or convictions that are eligible for automatic expungement and dismissal. And in some cases, prison or jail sentences could be reduced as well.
Only cannabis-related charges can be dropped, however. For instance, if someone was convicted several years ago of a shoplifting offense, and during the arrest was also charged with possession of cannabis, the cannabis conviction would be removed from their public record, but the shoplifting conviction would remain.
Each instance of possible expungement or sentence reduction will be reviewed by prosecutors in the judicial district where the charge or conviction was filed. Prosecutors have until July 1 to raise any objections.
Kaltenbach said the law doesn’t spell out or limit what objections a prosecutor can levy, but she believes most instances would be limited to cases that are legitimately not eligible for expungement.
“If there was a mistake and someone flagged a case for expungement for someone who sold cannabis to a minor, I could see that a prosecutor could say ‘Hey, this doesn’t fall under the guidelines,’” she said.
Fourth Judicial District Attorney Tom Clayton said his office is working with the New Mexico Administrative Office of the District Attorneys, which has contracted with an attorney to review each case that’s eligible for expungement or dismissal.
Any cases eligible for expungement in Las Vegas or throughout the Fourth Judicial District will be reviewed by that lawyer.
New prosecutions
With more states legalizing or decriminalizing adult cannabis use, law enforcement agencies nationwide are struggling with how to determine if someone is driving while impaired by THC, the active ingredient in cannabis.
“There is no presumptive level, like with alcohol, if you say ‘.08,’ everybody knows that number,” Clayton said. “Obviously a breath test won’t reflect (cannabis) impairment. The science needs to catch up regarding a presumptive level of THC in somebody’s system.”
Still, Clayton said he respects the decisions made by state legislators and sees positive aspects of legalized recreational use of cannabis.
“You’ll know the product that you’re buying. That’s always been one of the concerns with the use of illicit narcotics: You may think you know what you’re buying, but you may not. Some narcotics, they’re mixing it with all kinds of stuff,” he said. “Now that they’re regulating cannabis, you’ll go to a store and you’ll know what you’re buying.”
Clayton said his office will still prosecute anyone under the age of 21 whose found in possession of cannabis, along with anyone with amounts in excess of what New Mexico law allows. However, he said his office won’t be applying blanket policies to these types of cases and will examine each instance individually.
“We will look at it from the perspective of what’s in the best interest of the individual, society in general and the community,” he said. “We will enforce the laws, but in the context of each individual case.”
The road ahead
Even with licensed dispensaries selling cannabis across the state, most in law enforcement don’t expect to see a complete collapse of black market sales.
Clayton said his office plans to pursue criminal charges against anyone suspected of trafficking or illegally selling cannabis. However, he said his office will be focusing the most attention on prosecuting traffickers of other narcotics.
“Marijuana is a mind-altering substance, just like alcohol, but when you compare it to fentanyl, methamphetamine (or) heroin, in my opinion, we need to allocate our resources to the greater damage that’s occurring,” he said. “Fentanyl is clearly killing people. Methamphetamine is destroying families. So is heroin.”
And while drug traffickers in Las Vegas routinely face criminal charges, due to state and federal laws, many substance users are charged with crimes as well.
As previously reported by the Optic, Clayton and others are working to bring a Law Enforcement Assisted Diversion program to San Miguel County. Under the LEAD program, when police officers encounter someone who’s struggling with addiction, the officer has the option to divert criminal charges and get the person help, like substance use treatment.
Kaltenbach, who helped build the country’s second LEAD program, would like to see the need for criminal diversion removed altogether.
“Drug Policy Alliance is working very hard on decriminalization of possession for all drugs,” she said. “It must be treated as a public health issue, not a criminal issue. No one should be going to jail for possession and personal use. They should be provided with wraparound services, treatment and health care services.”
And though she thinks LEAD is a step in the right direction, Kaltenbach said it’s time to remove law enforcement from the equation and eliminate laws that make possession of any narcotic a crime.
“Right now, law enforcement has discretion under the LEAD model to divert someone into a harm reduction health program, but not everyone does it, so it would be nice to take law enforcement out of the picture … and take drug use and possession completely out of the criminal legal system,” she said. “That individual shouldn’t have to be detained by law enforcement in order to get into a LEAD program.”
On top of standard sales taxes, the state will levy a 12 percent excise tax on cannabis sold in licensed dispensaries, and the tax will gradually increase to 18 percent. In other states with legal weed sales, some of that tax revenue is placed into programs like LEAD or other harm reduction treatment services, something Kaltenbach would like to see happen in New Mexico.
“We’ll celebrate on Friday for the launch of sales,” Kaltenbach said. “And then next week, we’ll get back to work advocating for the cannabis tax revenue to be reinvested back into communities that have been most harmed by prohibition.”
