Updated: 2 p.m.
Minnesota may soon become the 23rd state to legalize recreational marijuana. The state House and Senate both approved different versions of the bill last week. If they can reach agreement on a singular bill, it'll head next to Gov. Tim Walz, who has already shared his support.
A key part of this legislation is how it would affect people with marijuana records whose crimes would no longer be considered crimes. Like in other states that have already fully legalized marijuana, Minnesota lawmakers are proposing ways for people to get marijuana offenses cleared.
This process is called expungement, or sealing records. Expunged records aren’t destroyed, but they’re removed from the public view and won’t appear in background checks.
A statute passed in 2015 known as the “Second Chance Act” gave Minnesotans the ability to petition for expungement for records of all kinds – a lengthy and often difficult process. What’s written in the recreational marijuana bill related to expungement would be added to the current law, with the intention to make sealing marijuana records a simpler process.
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Let’s dig into the specifics.
Why are states including expungement as part of marijuana legislation?
Expungement in these cases is a practice of social equity. Criminal records can follow people for a lifetime.
Among many potential consequences, a record can cost people jobs, housing and more. It’s legal for landlords and employers to reject applications due to marijuana records, even when arrests didn’t lead to charges or charges were dropped.
“If you got arrested for felony drug possession, and it turns out that it was Alka Seltzer and they drop charges, there’s still a record of it. It’s still public,” said defense attorney Jon Geffen, the law firm director at the Legal Revolution, a nonprofit law firm that helps incarcerated and formerly incarcerated people with legal barriers.
Since the 1970s, getting caught with a small amount of pot in Minnesota has been a petty misdemeanor, which is defined as “not a crime” by law, similar to a parking ticket, said Geffen.
“But if I run a background check on somebody, I make a judgment about them based on a petty misdemeanor.”
Record clearing is also a matter of racial justice.
Black Minnesotans have been 5.4 times more likely than white Minnesotans to be arrested for marijuana possession, though usage between populations is about the same, the American Civil Liberties Union found in 2020.
“When you overpolice and overcharge [people of color], you’re going to see that disparate impact all the way through. You see it financially, causing generational problems. It even breaks up families. Let’s say dad’s got something on his record. He can’t get into the same housing, so he can’t live there,” Geffen said.
Expungement is a gesture toward righting historical wrongs. While some Republicans have opposed legalizing recreational marijuana, few have expressed concern related to the expungement aspect of the bill.
Would misdemeanor marijuana records be cleared if cannabis gets legalized?
Possession misdemeanors and petty misdemeanors would automatically be expunged, as long as the offense was nonviolent. This includes non-conviction records like arrests or dropped misdemeanor charges. Minnesotans with these records wouldn’t be required to apply or petition for expungement.
“Automatic is huge, because what we’ve seen historically is people with resources hire an attorney to get an expungement, and people without resources don’t,” Geffen said. “So then what you have are people that suffer more just based on socioeconomic status.”
How would the automatic expungement work?
The automatic expungement piece would largely fall on the Minnesota Bureau of Criminal Apprehension, or BCA, which would be required to identify all individuals eligible for automatic expungement, then grant the expungements and notify the judicial branch.
The bureau would have 60 days after doing that to seal the records and notify all relevant arresting or law enforcement agencies. Then those entities would seal their versions of the records, too.
This work has been slow and painstaking in other states. Many criminal record databases aren’t set up to communicate with each other, making the process “very difficult and very costly,” said Jana Hrdinová. She’s an expert in drug legalization and criminal record reform at Ohio State University’s Moritz College of Law and directs its Drug Enforcement and Policy Center.
“People need to know that even if you pass a real progressive law, that doesn’t necessarily mean that relief will come in a short basis,” Hrdinová said.
It’s not yet known how the BCA would choose which records to start with, or if all records will be expunged at once or on a rolling basis.
“It allocates a huge amount of work to the BCA to figure out all the eligible people, but it doesn’t include any type of timeline,” Geffen said. “I’d like government to be held accountable on this.”
The Minnesota House version of the bill would kick this work off on Aug. 1. In the Senate’s current version of the bill, though, this wouldn’t begin until January 2025.
Would felony marijuana records be cleared?
Felony marijuana records wouldn’t be cleared automatically under Minnesota’s legalization bill.
A new governmental Cannabis Expungement Board will meet monthly to review all of these records to determine if they’re eligible for expungement, a lesser sentencing, a vacated conviction or dropped charges. The felonies must be for possession and nonviolent. The board would also assess whether it would be appropriate to restore the person’s right to possess firearms.
Board meetings will be open to the public, but the person’s identity would remain private.
According to the bill, the BCA also would identify all eligible felony marijuana records and share them with the new board, made up of the chief justice of the Minnesota Supreme Court, the state attorney general, one state commissioner, a public defender and one member of the public “with experience as an advocate for victim’s rights, appointed by the governor.”
The Cannabis Expungement Board would relay any records that qualified for resentencing or expungement to the state’s judicial branch. The judicial branch would issue an order to seal the records or move forward with resentencing.
The bill requires this work to be completed by June 30, 2028.
It was not clear as of Friday whether people who got their criminal record when they were under 21 would be eligible for expungement, according to both Geffen and Jason Tarasek, an attorney and founder of the Minnesota Cannabis Law firm.
How many Minnesotans could be eligible for expungement?
The state Bureau of Criminal Apprehension is the “hub of all criminal data in the state,” said Geffen, but the agency stresses that it can only account for the records it holds.
There are an estimated 66,000 people with misdemeanor marijuana records eligible for automatic expungement, according to the BCA – the number includes arrests, dropped charges, records where a case was won or dismissed. An estimated 9,818 of those people have actual convictions.
The BCA also estimates 230,000 felony marijuana records would be eligible for review, 83,909 of which are convictions.
How will people know if their record was expunged?
For automatically expunged records, the bill says the BCA “shall make a reasonable and good faith effort” to notify people whose records qualify for expungement that notice is being sent to the judicial branch to seal the record. In the case of felonies, the Cannabis Expungement Board will do this instead of the BCA.
In both cases the court administrator will send a letter to the person’s last known address to let them know which agencies and jurisdictions the expungement order was sent to, like law enforcement or other courts.
What are the current laws around marijuana possession in Minnesota?
Possession of 42.5 grams or less is currently a misdemeanor associated with a maximum $200 fine. Having more than 1.4 grams inside a vehicle is a misdemeanor punishable by up to 90 days imprisonment and a maximum fine of $1,000.
Possession of anything over 42.5 grams is a felony with potential time behind bars and fines increasing with the amount of marijuana seized.
Decriminalization will also prevent thousands more from being charged with crimes. In 2022, more than 5,000 people were arrested in Minnesota on suspicion of possessing or using marijuana, according to BCA data.
The legalization bill allows for people 21 and older to legally have 2 ounces (nearly 57 grams) or less in a public place. The House bill allows for 1.5 pounds or less at home, and the Senate’s would authorize 2 pounds or less at home, but up to 5 pounds if grown at home.
People would also be allowed to have up to 8 grams of cannabis concentrate, edibles with up to 800 milligrams of THC and up to eight marijuana plants at home.
How would this impact people who are incarcerated with marijuana offenses?
It’s currently unclear if and how legalized marijuana in Minnesota would impact people who are in prison on marijuana convictions.
As of April 20, there were eight people incarcerated in Minnesota’s state prison system whose only active sentence is a marijuana possession sentence, according to the Minnesota Department of Corrections.
Those eight are among a total 64 people in prison in Minnesota with active marijuana sentences, but 54 also have an active sentence for another offense not related to marijuana, and two have sentences for selling marijuana, which would still be illegal.
As of July 1, 2020, more than 64 percent of those incarcerated in state prisons with marijuana offenses were people of color. In comparison, about 22 percent of Minnesotans are people of color, according to U.S. Census data.
These figures don’t account for anyone serving a sentence for less than one year in county jail. (the Minnesota Sentencing Guidelines Commission did not send MPR News this data in time for publication).
“You’re going to see a lot of cases where there’s a marijuana piece to a case,” Geffen said. “Are they going to sort of cut up the case and remove it? Let’s say it’s a domestic and weed, but they dropped the domestic, and you take the weed plea. Are they gonna get rid of that non-conviction domestic?”
These are some of the questions unanswered in the bill, as well as what might happen with fines or outstanding fines tied to marijuana possession convictions.
Geffen predicts that anyone on probation only for marijuana possession would be relieved of their ongoing legal requirements.
How does Minnesota compare to other states on marijuana record clearing?
Minnesota’s proposals related to expungement are pretty middle of the road, according to Hrdinová.
“There are definitely some that are a little bit broader in terms of what they provide,” she said. “Missouri comes to mind as one of the most aggressive states when it comes to the scope of relief they will provide. And then you have states that don’t have anything.”
In November 2022, Missouri became the first state to pass automatic expungement for nonviolent offenses on a statewide ballot. The state’s bill required all marijuana-related misdemeanors be expunged by June 8, 2023, and felonies by Dec. 8, and the Missouri Independent reports that Missouri courts are asking state lawmakers for financial help with overtime pay in order to meet those deadlines.
As of March 6, Missouri courts had so far expunged about 10,000 marijuana records.
Hrdinová said the bill Walz is expected to sign into law is typical to what is seen in many other states.
“They start off a little bit slow and cautious, and sometimes down the line they pass additional legislation that might broaden the relief,” she said.
Editor's note (May 1, 2023): This story has been updated to clarify the process before the marijuana-legalization bill heads to the governor.