How a Drafting Error Made It Harder for New Yorkers To Obtain Relief From Marijuana Felony Records

Because legislators omitted a crucial letter, there is no straightforward way to downgrade convictions for offenses that are no longer felonies.

The cannabis legalization bill that New York enacted in 2021 includes two provisions aimed at reducing the impact of prior marijuana convictions. One facilitates the expungement of misdemeanor records involving conduct, such as low-level marijuana possession, that is no longer a crime. The other was supposed to help people convicted of marijuana felonies by downgrading their records in line with current law. But as The New York Times notes, a typographical error made the latter kind of relief harder to obtain than legislators promised.

The New York State Unified Court System says misdemeanor convictions involving possession of up to a pound or sale of up to 25 grams "will be automatically expunged…without filing any motions and without any fees." While the process for downgrading felonies under the Marihuana Regulation and Taxation Act is a bit more complicated, the law was supposed to create a presumption in favor of relief. Thanks to sloppy drafting, it did not work out that way.

The section of the law dealing with prior marijuana convictions describes two types of situations. Paragraph 2(a)(i) refers to a person convicted of a marijuana offense that "would not have been a crime" had the 2021 changes been in effect. Paragraph 2(a)(ii) refers to a person who "would have been guilty of a lesser or potentially less onerous offense" under current law.

Under paragraph 2(b), a court that receives a petition from someone convicted of a marijuana offense that no longer exists "shall…grant the motion to vacate such conviction." The paragraph adds that a court "may substitute, unless it is not in the interests of justice to do so, a conviction for an appropriate lesser offense" when "the petition meets the criteria in subparagraph (i) of paragraph (a)."

Whoops. That clearly should have been "the criteria in subparagraph (ii) of paragraph (a)," since it makes no sense to substitute "a conviction for an appropriate lesser offense" when no such offense exists. Because of that mistake, people with marijuana felony convictions cannot use the streamlined relief process that the law was supposed to provide.

"It's literally a typo," Legal Aid Society attorney Emma Goodman told the Times, which says the error "has prompted eye-rolling jokes about government dysfunction." But for people saddled with felony records because they engaged in a business that New York has now legalized, the situation is no laughing matter.

Under prior law, for example, someone caught with eight ounces to a pound of marijuana was guilty of a felony punishable by up to four years in prison. Under current law, possessing that amount in public is a violation punishable by a maximum fine of $250. Possessing five pounds or less at home is legal.

Possessing one to 10 pounds of marijuana used to be a felony punishable by up to seven years in prison. Public possession of one to five pounds is now a misdemeanor punishable by up to a year in jail and/or a fine of up to $1,000. Possession of more than five pounds (the limit for private possession) remains a felony, but the maximum sentence is now four years rather than seven if the amount does not exceed 10 pounds.

In other words, many people who have marijuana felony records, which are a barrier to housing, education, employment, and professional licensing, should be able to get relief from those burdens through the process created by the Marihuana Regulation and Taxation Act. In some cases, felonies would become misdemeanors; in other cases, they would be civil violations. But because of the missing i, that process is more difficult and uncertain than it was supposed to be.

In an email, Goodman estimates that 9,000 marijuana felony convictions are covered by New York's law, about half of which involve offenses that are no longer felonies. "A form should exist that allows for a simple request to have your conviction reduced/downgraded to the current level of the offense," she writes. While the law's language gives courts some discretion in granting petitions, she says, "nobody really anticipated pushback on the simple substitution of the lower-level offenses. It was expected that it would be a very straightforward process that could be done pro se."

The drafting error "has precluded felons from filing a straightforward form to receive a conviction reduction," the Times notes. Instead they "must have a legal motion drafted and submitted in the county court where they were convicted." While "such motions have largely sailed through in more liberal counties," the Times says, they face opposition from some local prosecutors.

"There are still significant contingents in parts of the state that are opposed to the law and do not want it implemented," Goodman told the Times. "Everyone in Albany understands it's just a mistake," she added, but "there's not an easy way to fix it."

Correcting the error would require new legislation. "It may take a little bit of time," a spokesman for New York Assembly Majority Leader Crystal D. Peoples-Stokes (D–Buffalo) told the Times, "but we're on it."