Marijuana

Is the Expungement Provision of the Marijuana Justice Act Constitutional?

Can Congress order federal courts to expunge records, and can it do so without a motion?

|

YouTube

In my column this week, I praise Cory Booker's Marijuana Justice Act for addressing the harm that pot prohibition has done to people convicted of violating it, including current federal prisoners and people who have completed their sentences but continue to suffer the collateral consequences of a criminal record. But there may be a constitutional problem with the way the bill handles the latter issue.

The resentencing provision seems legally unobjectionable. It gives someone serving time in federal prison for a marijuana offense the right to a new sentencing hearing, after which the court "may impose a sentence on the individual as if this Act, and the amendments made by this Act, were in effect at the time the offense was committed." The hearing is required when a prisoner asks for it, but the outcome is left to the judge.

The provision dealing with records of marijuana offenses, by contrast, says "each Federal court shall issue an order expunging each conviction for a marijuana use or possession offense entered by the court before the date of enactment of this Act." It says nothing about a motion by the offender or anyone else. Margaret Love, a former U.S. pardon attorney who runs the Collateral Consequences Resource Center, says that phrasing is legally questionable.

"We took some time to look carefully at potential constitutional questions raised under Article III and separation of powers where a law purports to direct a federal court to take a specific action in a case that has been finally decided, with no motion from either party," Love writes in an email. "While there is some authority that might support a court's compliance with such a directive as a housekeeping matter, despite the absence of a case or controversy, the separation of powers issues raised by mandating specific court action make the bill as drafted constitutionally problematic."

Love suggests this language, which she says would still be "a bit problematic": "Upon the motion of any party, or upon a court's own motion after giving any notice it considers appropriate, the court shall issue an order expunging each conviction for a marijuana use or possession offense entered by the court before the date of enactment of this Act." Requiring a motion would make expungement mandatory but not quite automatic.

California's approach to expungement of marijuana records might offer an alternative to the language in Booker's bill. Under a law enacted last year, the state Department of Justice is required to "review the records in the state summary criminal history information database and to identify past convictions that are potentially eligible for recall or dismissal of sentence, dismissal and sealing, or redesignation." The review has to be completed by July 1, 2019, at which point prosecutors have a year to object. If there is no challenge within a year, the court "shall reduce or dismiss the conviction." Love says an approach like that is "much better because the manner of presentation to the court involves a motion by government," although there might still be "separation of powers issues."

I contacted Booker's office on Monday, on Tuesday, and today to ask about the expungement provision but have not heard back. I will update this post if and when I do.

NEXT: Media Outlets Spread Fake News About TSA Seizing 'Rocket-Propelled Grenade Launcher'

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Where an individual has been arrested, convicted, and incarcerated for an act which the Congress had no power to criminalize, there is no issue.

    Where the vindication of individual liberty is the issue, any doubts about separation of powers must be subordinate to the liberty being vindicated.

  2. Let the clerk notify each defendant and the relevant federal prosecutor, asking if there are any objections to expungement.

    If the defendant objects, then drop the issue and let the conviction remain on the books.

    If the prosecutor wants to object to the expungement, let him or her do so, posting a bond secured by their salary so that if their motion fails, the defendant is compensated for his wasted time.

  3. Are mandatory minimums constitutional?

  4. >>>the separation of powers issues raised by mandating specific court action make the bill as drafted constitutionally problematic

    people w/bars in their face who shouldn’t have bars in their face > separation of powers issues

    1. Also consider the source of this comment, a person who’s entire job is based around people petitioning for expungement of their convictions (both in her private practice and the nonprofit she runs) This automatic clemency threatens her business model

      That’s not to say she isn’t right, she might be, but it certainly warrants a second opinion, and probably a third

  5. I contacted Booker’s office on Monday, on Tuesday, and today to ask about the expungement provision but have not heard back.

    Cool your jets, there, Jacob — the man is running for *President*!

  6. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.. http://www.Home.jobs89.com

  7. This is some fucking bullshit. Judges put people in fucking cages on the orders of Congress but they can’t expunge a few papers. Just kill me now. I’m sure shitlord will do it.

    1. Just order the executive branch to petition the judges.

      1. Get a prosecutor to find all the names, list them in a petition and file it. Done.

  8. Start making cash online working from home .I have received $18954 last month by working online from home in my spare time. I am a full time college student and just doing this job in part time just for 3 hrs a day. Everybody can get this and makes extra dollars online from home by just copy and paste this website and follow details… http://www.Home.jobs89.com

  9. The Federal courts are a creature of Congress.

    As such the direction provided seems within the scope of legislature.

  10. Thanks admin for giving such valuable information through your article . Your article is much more similar to http://www.mcmbackpacksoutleto…..-pink.html word unscramble tool because it also provides a lot of knowledge of vocabulary new words with its meanings.

Please to post comments

Comments are closed.