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Adult-Use Initiative Petition ,
What You Need to Know
Part 1 of 3
Fully Automatic , Semi-Automatic , and Manual Expungement
by Denise B . McCracken , Attorney , contributing writer
If passed by a majority of voters in November , Initiative Petition 2022-059 , also known as Legal Missouri 2022 ( the “ Initiative ”), will legalize adult-use cannabis in Missouri and broadly expunge qualifying marijuana offenses . Expungement is the first topic in The Evolution Magazine ’ s three-part series because those who think they might qualify , or don ’ t have any idea if they qualify , should start investigating . “ Expungement ” often implies record expungement , sentence vacation , incarceration release , and probation and parole termination . The Initiative , however , treats these actions separately .
The Initiative is written like a decision tree . The decision tree starts by asking : Have you completed or not completed any incarceration or supervision ( probation or parole )? If yes ( or no ), do you have a qualifying or disqualifying marijuana offense ? Whether or not a person needs to act and a court ’ s timeline and discretion depends on their answers .
Offender Status
The individual offender ’ s status — no longer incarcerated and under supervision , currently under supervision ( probation or parole ), or currently incarcerated — determines if court action is automatic , required , or discretionary . This article uses “ fully automatic ,” “ semi-automatic ,” and “ manual ” to help readers remember the different categories .
Fully Automatic : Any Person No Longer Incarcerated or Under Supervision
If a person is no longer incarcerated or supervised , courts only need to order record expungement . Without any discretion , courts are required to expunge the criminal history records of qualifying marijuana misdemeanors within six months and qualifying felonies decriminalized by the Initiative within twelve months of the effective date . The Initiative ’ s effective date is December 8 , 2022 . This section also appears to differentiate between individuals who are ex-offenders as of the effective date versus after the effective date . For the latter group , courts are required to order expungement of qualifying
offenses “ upon the completion of the person ’ s incarceration , including any supervised probation or parole .” Regardless , ex-offenders need not act , and expungement is “ fully automatic .”
Semi-Automatic : A Person Currently on Probation or Parole Courts automatically vacate the sentence of marijuana offenders currently under supervision upon the Initiative ’ s effective date . Courts are also required to terminate supervision and expunge all case records . Still , courts are given some discretion on ordering expungement . Expungement will be granted “ absent good cause for denial .” “ Good cause ” is not defined in the Initiative . Its meaning may vary on a case-by-case basis depending on the facts and perspective of the deciding judge . Because courts are given discretion , expungement is “ semi-automatic .”
Manual : An Individual Currently Incarcerated
Currently incarcerated marijuana offenders in prison , jail , or halfway house must first file a petition with the sentencing court to benefit from the Initiative . The Missouri Public Defender will prepare a pro se pleading form , and both the Public Defender and circuit courts must make the form readily available . Courts are not required to grant the petition to vacate the sentence and release the offender from prison . As with semi-automatic cases , record expungement must be granted for a currently incarcerated person ’ s applicable marijuana offenses , “ absent good cause for denial .” Because incarcerated individuals must file a petition and courts are given discretion , expungement is “ manual .”
Incarcerated individuals are caught in ambiguity because offenders are not given a due date to file their petitions . However , courts are required to “ complete the adjudication of all cases ” within 90 , 180 , or 270 days of the effective date , depending on the marijuana offense . One interpretation is that incarcerated individuals can always file a petition and the adjudication timelines simply compel timely resolution . On the other hand , the Initiative neither explicitly grants a right to file at any time nor dictates court action after the deadlines .