Big job ahead for panel tasked with felony marijuana expungements

If you’ve been convicted of what used to be a marijuana-related crime in Minnesota, your record could be cleared as part of the state’s adult-use recreational cannabis law, which took effect in August 2023. Tens of thousands of low-level cases have already been erased. But the task of expunging records of felony convictions is far more complex, and a new state board is figuring out how to do it. 

Over the last year, regulators have been busy drafting rules for growers and sellers who hope to compete in Minnesota’s burgeoning cannabis marketplace. There’s also a major effort underway — required by the cannabis law — to remove marijuana-related convictions from state records. 

The Minnesota Bureau of Criminal Apprehension has already sealed from public view nearly 58,000 mostly misdemeanor convictions in the state’s criminal history system. But now it’s up to the new Cannabis Expungement Board to sift through tens of thousands of additional cases that are more serious. These are felonies that carry prison sentences of a year or more, and can make it more difficult for a person to get a job or rent an apartment. 

Attorney Jim Rowader is the board’s executive director, and said that their mandate is to apply the new law retroactively. 

“There are things relating to cannabis that after August of 2023 would no longer be a criminal offense,” Rowader said. “And so the overall intent is trying to give them that opportunity to move forward with their life without the burden of that criminal conviction, which in today’s world would no longer be that level of criminal offense.” 

In many states that legalized marijuana, it’s up to individuals to seek out expungement on their own. In Minnesota, the law requires the state to take action. But figuring out which formerly felony-level marijuana convictions qualify is not as simple as it sounds. 

That’s because the statute prohibits expungements of cases involving “the intentional infliction of bodily harm on another” as well as offenses where a weapon was used. 

Last week, Minnesota Assistant Attorney General Ayodele Famodu, who has worked as a public defender, prosecutor and military lawyer, illustrated for her fellow expungement board members the difficulty of figuring out which cases qualify. 

As it awaits permanent office space, the panel gathered last week in the basement conference room of a Department of Corrections building in St. Paul. But this official public meeting was more like an after-hours law school study session.

“This is the kind of stuff we’re going to get,” Famodu said as she opened her laptop and displayed a handwritten plea agreement from an eight-year-old Dakota County case on a large screen. “It’s going to be handwritten most of it. It’s going to be older,” she added.

Famodu explained that in 2016, prosecutors charged a St. Paul man with two marijuana felonies and a gun count after Eagan police found 71 grams of pot and a revolver in his vehicle during a traffic stop. 

She noted that the defendant pleaded guilty to a fifth-degree felony, and in exchange, prosecutors agreed to drop the other two counts, including the gun charge.

Famodu and chief state appellate judge Susan Segal, who’s also a member of the board, discussed whether this case would qualify for expungement. While the complaint mentions a weapon, the defendant only pleaded guilty to the marijuana count.

“Does the offense involve a gun?” Famodu asked. “That’s what we need to figure out,” Segal replied.

Famodu said that it could be challenging for the board to find old marijuana cases that qualify, because many, like the example she gave, include additional counts that don’t involve drugs.

James Gempeler, a criminal defense attorney who specializes in expunging records for a variety of crimes, praised the new board’s efforts so far, but he said that they have a big job ahead. The board does not take applications for expungement. And Gempeler advises for now that someone seeking to have a conviction sealed could get quicker results by filing a petition with a judge. 

“We have no idea when the board will get to their specific record, so if someone is in need of getting it done sooner rather than later, going the more traditional route I think is still a viable option,” Gempeler said.

Rowader, the expungement board’s director, said in the coming months, he plans to hire nearly three dozen attorneys, paralegals, and other staffers to begin an effort that could change the lives of tens of thousands of Minnesotans.

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