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Expungements and Early Release from Probation , Parole , or Prison Under Article XIV / Amendment 3
by Dan Viets , J . D ., contributing writer
As of Wednesday , January 20 , 2023 , 3,518 Missouri marijuana convictions have already been expunged from public record under Article XIV / Amendment 3 , the measure which legalized adult-use of marijuana and became effective only slightly more than one month earlier , on December 8 . According to the Missouri Office of State Courts Administrator ( OSCA ), nearly 1,000 of these expungements occurred in Clay County , just east of Kansas City . Tiny little Ripley County , down on the Arkansas border , accounted for the second highest number of expungements at that point , 352 . Moreover , in a single week in January , 1,178 expungements were recorded by OSCA .
Most of these expungements have taken place in counties where public officials have taken the initiative to abide by the will of Missouri voters as expressed in their support for the new amendments to Article XIV of the Missouri Constitution , which were known as “ Amendment 3 ” on the November 8 , 2022 , ballot . Many thousands more will follow in the coming months .
The new law contains provisions that require the automatic expungement of all misdemeanor marijuana convictions by June 8 , 2023 . All Class D or E felony convictions involving simple possession of three pounds or less should be automatically expunged by December 8 , 2023 . D felonies are ones that involve no distribution or allegation of intent to distribute .
Other parts of Article XIV provide early release from probation or parole or jail or prison for some marijuana defendants . Those serving a sentence in jail or prison for possessing three pounds or less may petition the sentencing Court for early release pursuant to Article XIV . Such petitions have already begun to be filed in courts throughout Missouri . Some judges are granting them immediately , but other judges are acting more cautiously , and some are looking for excuses not to grant such motions .
There will certainly be questions about Article XIV , which will be taken up by the Missouri Court of Appeals and , perhaps , by the Missouri Supreme Court . Many people involved in drafting Amendment 3 , including several lawyers and leaders of Missouri NORML Chapters across the state , as well as NAACP leaders and others . Our goal was to draft a law that would help as many people as possible — but would also be accepted by a majority of Missouri voters . To determine what the voters were likely to accept , we commissioned professional , scientific polling asking voters what they would support . The final wording of Amendment 3 reflects the responses to that polling .
Those who have been convicted of Class A , B , or C marijuana felonies , and D felonies involving more than three pounds , will have their case records automatically expunged as soon as they are finished with their sentences , including probation or parole . This includes all marijuana offenses : cultivation , manufacturing , distribution , and possession with intent to distribute . There is no limit on the weight of marijuana that was involved in the offense . As long as it did not involve violence , distribution to a minor , or driving under the influence , it will be expunged .
“ While these are supposed to be expunged ... upon the completion of the person ’ s sentence …” there is no specific deadline for the courts to finish the process of expunging those cases . Hiring an attorney to petition the sentencing court to expunge such cases may result in quicker expungement .
The procedure for persuading a court to grant any motion is complicated . This is especially true of a law as complex and new as Article XIV .
The terms of expungement , as described in Article XIV , are actually very broad and comprehensive . The Missouri Constitution now states that a person who receives a conviction under Article XIV “. . . shall be treated in all respects as if he or she had never been arrested , convicted , or sentenced for the offense , and the conviction and sentence shall be vacated as legally invalid . The Court shall issue an order to expunge all records and files related to the arrest , citation , investigation , charge , adjudication of guilt , criminal proceedings and probation related to the sentence .”
Therefore , it may be the case that one whose probation or parole has been revoked because of a marijuana offense , regardless of what the original offense is for which the defendant was on probation or parole , may likewise be restored to probation or parole after receiving such an expungement . This is the legal theory that the Missouri Public Defenders Parole Revocation Defense Team is now advancing . I believe it is a very promising theory that Missouri courts should accept and uphold .
The automatic expungements of state marijuana convictions will be very helpful to many who are facing sentencing in a federal criminal matter . Prior criminal history is a major factor in calculating federal criminal sentencing guideline ranges . While federal judges are not bound by the guidelines , most federal judges tend to follow them . Expunging prior state marijuana convictions can make a dramatic difference in the sentence in federal cases .
16 February 2023