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Missouri Marijuana Expungements Continue
Article XIV , Section 2 clearly mandates that all circuit courts are to expunge such offenses .
by Dan Viets , J . D ., contributing writer
When Missouri voters passed Article XIV , Section 2 , in November 2022 , legalizing marijuana for adults in our state , they also enacted several equity measures , including a sweeping automatic expungement mandate for almost all marijuana-related offenses . After a century of marijuana prohibition , there are hundreds of thousands of such cases .
As of January 2025 , 140,000 of those have been expunged . These include most of the cases recorded in electronic media since approximately the beginning of the 21st Century . No one knows exactly how many remain to be expunged . Identifying those eligible cases will require a great deal of time and work by the staff of Missouri ’ s 115 Circuit Court Clerks .
Fortunately , Article XIV , Section 2 also provided the money to pay for this process . The first priority for this tax money , after the administration of the law by the Missouri Department of Health and Senior Services ( DHSS ), is paying for the expungement process .
The six percent statewide sales tax on adult-use marijuana has provided ample funding for expungement . The remainder of the money from the tax is evenly divided among veterans ’ services , science-based addiction treatment , and the Missouri Public Defender system . Approximately 10 million dollars has been provided for each of these purposes each year since legalization . Much more will be provided in the future .
Clearly , plenty of money is available to pay for the expungement of marijuana cases . However , some of the Circuit Clerks across our state have demonstrated a reluctance to follow the law , and the rate of expungements in counties has varied greatly .
People seeking to rent a home , take out a loan , or find employment often find that a public record of a marijuana offense is a serious impediment to accomplishing those goals . Article XIV , Section 2 is intended to undo at least some of the damage inflicted on Missourians by 100 years of marijuana prohibition .
This expungement process especially benefits Black Missourians . According to two studies done by the American Civil Liberties Union in recent years , the rate of marijuana arrests for Black Missourians per capita has been approximately two-and-one-half times greater than the arrest rate for Whites , adjusted for the difference in population of these groups . This means that the expungement of marijuana offenses should likewise benefit approximately two-andone-half times more Black Missouri citizens .
As with any new law , questions involving interpretation will need to be resolved in the courts of our state . Some Missouri courts have searched desperately for an excuse to minimize expungements .
For instance , some counties decline to expunge cases , which results in a Suspended Imposition of Sentence ( SIS ) probation . Technically , SIS probation , when successfully completed , does not result in a conviction . However , nothing in Article XIV , Section 2 limits expungement to cases resulting in a conviction .
Some courts claim that if the Defendant was under 21 when the offense occurred , those offenses are not to be expunged because it is still against the law for minors to possess marijuana . This interpretation ignores the fact that the penalty for possession by those under 21 has been dramatically reduced , and the law clearly mandates expungement of offenses for which the penalties have been reduced .
Perhaps the most important question remaining is whether municipal marijuana offensives will be expunged . Most municipal courts in our state want to believe that they are somehow exempt from the law . This is despite the fact that Article XIV , Section 2 clearly mandates that all circuit courts are to expunge such offenses . Our Constitution clearly states that the municipal courts are divisions of the circuit courts . Nonetheless , it is likely that litigation will be required before this fact is universally recognized and Missouri municipal offenses will be expunged .
Some courts in Missouri have declined to grant expungement for possession of THC . Missouri statutes actually use to make the possession of any amount of “ tetrahydrocannabinol ” ( THC ) a felony offense . In recent years , some prosecutors began to charge the possession of any form of concentrated marijuana as a felony offense , even when the amount involved was less than 35 grams . After the passage of Article XIV , Section 2 , some Missouri courts refused to expunge those cases , “ reasoning ” that the possession of THC was not specifically addressed in Article XIV .
Fortunately , this issue has now been resolved . In a case titled “ RMS v . Lafayette County , 696 S . W . 3d 401 , a panel of the Western District Missouri Court of Appeals unanimously ruled that possession of THC is indeed covered by Article XIV and such cases must be expunged .
Speaking as one of the several people who took part in the drafting of Article XIV , I can speak with some authority to the point that this was certainly the intent of the drafters of the Missouri Constitutional Amendment . It is encouraging to see that the judges of the Western District Court of Appeals understood this . There is no longer any doubt that possession of concentrates , including those charged as possession of “ tetrahydrocannabinol ” ( THC ), must be expunged under Article XIV .
The other remaining issues that need to be resolved will be addressed by future decisions of our Courts of Appeals . Cases presently pending will address the matter of whether a case originally charged as marijuana possession but amended to a non-marijuana charge should likewise be expunged under Article XIV . Another case pending in the Southern District Court of Appeals will resolve the question of whether Missouri courts have the discretion to revoke probation because of marijuana use . Article XIV , Section 2 clearly prohibits revoking probation on this ground . However , some courts insist that because marijuana is “ still against federal law ,” they have the right to revoke probation on that ground . I am optimistic that the Missouri Court of Appeals will disagree .
Dan Viets , J . D ., is Chair of the National Board of Directors of NORML ( National Organization for the Reform of Marijuana Laws ) and the Missouri State Coordinator for NORML . He chaired the Boards of Directors of both the 2018 and 2022 Article XIV campaigns . He has practiced law in almost every circuit court in Missouri during the past 38 years .
8 February 2025