Only One In 10 Ohio Prosecutors Say They’ll Seal Drug Records Under Reform Law, With Most Eyeing Relief For Marijuana Convictions, Study Finds

As Ohio voters prepare to decide on a marijuana legalization initiative on the November ballot, only about one in 10 Ohio prosecutors say they’re likely to take advantage of a separate recently enacted law that allows them to independently seal the records of people with low-level drug convictions—and most of those say they’d focus on cannabis-related offenses—according to a new study.

Researchers at Ohio State University surveyed 86 municipal prosecutors this year to better understand the practical impact of the reform, which passed the legislature in late 2022. They found that 12 percent of the officials were either “somewhat likely” or “very likely” to pursue relief on their own, without an eligible person petitioning for record sealing.

While that may seem like a small fraction of the prosecutorial population, it should be noted that three of the nine prosecutors who said they were inclined to utilize the authority represent three of Ohio’s four largest cities, covering about 13 percent of the overall population.

The survey also asked prosecutors about their reasons for saying they were likely or unlikely to facilitate record sealing. Among the 50 percent who said they likely would not, most said it was because of limited staffing resources (69 percent), followed by a budhetary inability to pay the $50 fee for each application (55 percent).

Another 51 percent said the “current defendant-initiated system is sufficient,” and 43 percent said they did not believe it was their office’s responsibility to take those steps.

On the flip side, 89 percent of prosecutors who said they were likely to provide relief under the recently enacted law explained that doing so would be “key to limiting collateral consequences for people with low-level offenses.”

DEPC @OSU_law surveyed elected and appointed #prosecutors in Ohio to gauge their interest in and willingness to initiate #recordsealing or #expungement applications on behalf of those convicted of low-level controlled substance offenses.

Read the results: https://t.co/h5XPqAHTL9pic.twitter.com/tceFtem8O9

— Drug Enforcement and Policy Center (@OSULawDEPC) August 24, 2023

They also said that the “current defendant-initiated system is too difficult and costly for ordinary people to navigate” (67 percent), and sealing records “would help address racial inequities in the criminal justice system” (56 percent).

The survey also asked those who said they would process relief on their own about what types of cases they had in mind. Three of the nine cited marijuana possession cases of up to 100 grams, two said cannabis possession cases involving 100-200 grams, two said drug paraphernalia cases, two said illegal marijuana cultivation with up to 100 grams, two said cultivation of 100-200 grams and two said illegal gifting of cannabis up to 20 grams.

The law at the center of this study also protects people from getting criminal records for possessing cannabis paraphernalia.

“With some large Ohio jurisdictions publicly stating their intention to move forward with prosecutor-initiated sealing/expungement and others likely to pursue prosecutor-initiated sealing/expungement given their past efforts, it is still quite possible that the new prosecutor-initiated process will greatly increase the total number of persons receiving record relief in the state of Ohio,” the study authors wrote.

While the survey doesn’t identify the respondents and the jurisdictions they represent, the mayor of Cleveland has voiced strong support for the underlying legislation and said in April that the city would be pursuing relief for thousands of residents with marijuana convictions on their records.

“The Ohio General Assembly should be commended for its past and continuing efforts to expand access to record relief in various ways,” they said. “But with research in Ohio and elsewhere demonstrating that legal changes are just a first step in aiding persons unduly burdened with criminal records, the General Assembly and other policymakers in Ohio should be sure to keep examining and studying the implementation and effectiveness of the various reforms.”

In the background of this report, Ohio voters are set to decide on broadly legalizing marijuana for adult use this November, with the state Ballot Board finalizing summary language for the initiative on Thursday after the secretary of state’s office certified that the campaign collected enough valid signatures for ballot placement.

The measure would not provide for automatic expungements, however, to the disappointment of social equity advocates. That said, it does include a provision requiring regulators to “study and fund” criminal justice reform initiatives including expungements.

An economic analysis from Ohio State University researchers that was published this month found that Ohio could see up to $403.6 million in annual tax revenue from adult-use marijuana sales if voters approve the legalization ballot initiative.

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Missouri Black Leaders Divided Over Marijuana Legalization Ballot Measure

“This amendment, despite having positive elements, reads like it was designed to benefit current vendors and license holders—not everyday people.”

By Rebecca Rivas, Missouri Independent

In a move highlighting a growing divide among Black leaders and organizations in Missouri over a push to legalize marijuana, St. Louis Mayor Tishaura Jones (D) on Tuesday announced she would oppose the measure appearing on the November 8 ballot as Amendment 3.

While she supports legalization, Jones said she doesn’t support etching what she believes is a potentially inequitable legalization process into the state’s constitution where “it can be difficult to alter.”

“If we choose the path of a constitutional amendment to resolve the matter of legalization, it would have to be forward-thinking, flexible and most of all, equitable,” Jones said in a statement. “This amendment fails to meet that lofty aim. Simply put, legalization does not equal decriminalization.”

Jones joins state Rep. Ashley Bland-Manlove (D), chair of the Missouri Legislative Black Caucus, who began advocating against Amendment 3 early on, as well as the Missouri NAACP, which announced its opposition last month.

Both argue the amendment will create the “permanent exclusion” of minorities from the cannabis industry.

Yet on the same day as Jones’s announcement, and on the other side of the state, Freedom Inc., a Black-led civil rights organization in Kansas City, announced its support of the amendment.

“Every day that goes by where cannabis is still illegal in Missouri, is a day when justice is not being served,” said Rodney Bland, president of Freedom Inc.

Freedom Inc. joins Action STL Power Project, the political-organizing engine that helped get Jones elected in April 2021, and Kansas City Mayor Quinton Lucas (D) in praising the proposal’s measure to expunge marijuana charges from people’s criminal records.

And while the statewide NAACP opposes the amendment, the St. Louis city chapter has been among its most vocal proponents.

“If the world is changing and voters overwhelmingly believe marijuana should be legal, then clearing past convictions is a moral imperative,” said John Payne, campaign manager for Legal Missouri 2022.

The licensing process

At the heart of the opponents’ concern with Amendment 3 are caps on licenses to grow, transport and sell marijuana that were imposed by state regulators after voters created Missouri’s medical marijuana program in 2018.

The state decided to only issue the minimum number of licenses allowed for medical marijuana—60 cultivation licenses, 192 dispensary licenses and 86 manufacturing licenses. Since then, the state has issued around 20 additional licenses, including some which were ordered to be issued by the administrative hearing commission due to irregularities in the application scoring process.

Few licenses went to Black-owned businesses.

Amendment 3 would allow the state to continue capping licenses while giving current medical marijuana license holders first dibs on the more lucrative recreational licenses.

“This amendment, despite having positive elements, reads like it was designed to benefit current vendors and license holders—not everyday people,” Jones said. “I recognize the problems and stratification created by the amendment’s licensing system.”

I meant de-criminalization.

Where Elon Musk with the edit button when you need it? LOL!

— Tishaura O. Jones (she/her) (@tishaura) November 2, 2022

Nimrod Chapel, Jr., president of the Missouri NAACP, said after his organization announced its opposition to Amendment 3 that the proposal has the financial backing of many of the state’s largest medical marijuana license holders who are trying to “carve out the entire market for themselves.”

“They’re certainly Caucasian run, led and owned,” he said of the current medical marijuana license holders, “and minority participation has been completely left out of the equation.”

Amendment 3 supporters say the system’s racial inequities would be addressed through the 144 “micro licenses,” where applicants must be a resident from a ZIP code with high marijuana incarceration rates or meet other such requirements.

“That’s why I support it and pushed for the micro licenses piece,” Adolphus Pruitt, president of the St. Louis City NAACP chapter, said in an interview with The Independent last month, “because the micro license dictates that it goes to people who have been disadvantaged.”

Currently, one of the biggest struggles for many smaller medical marijuana companies is obtaining capital. Marijuana is still illegal on a federal level, so bank loans are not an option, Pruitt said.

Regarding the caps, Pruitt said it’s the state Department of Health and Senior Services that is capping the licenses, not the amendment language itself.

However, Chapel argues the companies funding the Amendment 3 campaign will lobby to keep the caps in place that have shut Black businesses out.

“It’s the keep-rich-people-rich bill,” Chapel said.

In the month before Election Day, Legal Missouri has raised $1.3 million from businesses involved in the marijuana industry. It has reported spending more than $1.4 million, with most of that going towards media buys.

Save Our State, the political action committee formed in September to oppose Amendment 3, has not reported raising any money.

Expungement provision

Amendment 3 also includes a process for Missourians with nonviolent marijuana-related offenses to automatically expunge their criminal records.

It would set up a timeline for when courts have to expunge records depending on the class of offenses, where misdemeanor offenses would be adjudicated first. The courts would have one year to order the expungements of people who are not in jail or on parole or probation.

The fees and tax revenues from the marijuana program would go towards paying for expungements, according to the petition.

Supporters say the expungement measures are among the most far-reaching yet proposed in the nation.

“The War on Drugs has been primarily waged against people of color, and it’s time for the madness to end,” said Garrett Griffin, spokesman for Communities Creating Opportunities, in the joint statement with Freedom Inc. “Just as no one should have been rotting in prison in the 1920s over alcohol, no Missourian or American should be punished for using marijuana.”

These #expungement measures are among the most far-reaching to date in nationwide #cannabis legalization measures, and represent a critical #criminaljusticereform for our state. Funds from the cannabis sales tax revenue will cover the costs of the #automaticexpungement program.

— Legal Missouri 2022 (@LegalMo22) November 2, 2022

Critics say expungement is key to marijuana legalization, but argue Amendment 3 doesn’t go far enough.

Chapel pointed to a provision in the petition that states the funding for expungement is contingent on approval from the legislature and governor’s office.

And expungement, Chapel said, doesn’t appear to be their priority.

“I just look back at how the medical marijuana licensing process has gone, and it is full of nothing but controversy,” Chapel said. “I don’t have any expectation that the expungement program—which the legislature and perhaps the governor are not fully behind—would be run in any different or better way than the medical marijuana debacle.”

Payne said getting the legislature to make this appropriation doesn’t concern him because the funds “can’t be spent elsewhere.”

Opponents also expressed frustration that Amendment 3 includes certain penalties for marijuana use that, because they will be included in the state constitution, will be difficult to fix.

A change to the constitution must be approved by a statewide vote. Issues can be placed on the ballot either by the legislature or through the initiative petition process—which Chapel noted can be an expensive and time-consuming process.

“There seems to be a real spirit that this is good enough or this is going to be a good start,” Chapel said of Amendment 3. “But this is our constitution. It’s kind of a big deal, and I think that it’s worth our time to get it right.”

This story was first published by Missouri Independent.

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