A new law will go into effect on Sunday, September 27, giving Colorado's governor the ability to mass-pardon those convicted in the state of possessing two ounces or less of marijuana. When he signed the bill on June 29, Governor Jared Polis confirmed that he would be using his new power.
But he never said when.
"We hope that this measure will be the first step toward new opportunities for thousands of Coloradans who should not be living with a cloud over their heads simply because they were a little ahead of their time," he said at the signing ceremony.
Two days before his pardoning ability becomes official — and in the middle of National Expungement Week — we still don't know when Polis will pardon these convicted offenders, many of whom still face obstacles obtaining employment, loans and housing because of their records, even though the crimes they were charged with are no longer considered crimes in Colorado.
Outgoing State Representative Jonathan Singer, who pushed for Polis's new pardoning power in the Colorado Legislature, says he's heard "nothing" from Polis's office about the pardons, and there's been no framework announced for the statewide process. The Governor's Office says it has no update on the initiative's progress. Nor does the office of Colorado Attorney General Phil Weiser, which is also likely to play an integral part in implementing the ambitious effort.
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The state has been busy dealing with COVID-19 and protests over police brutality and systemic racism. But the national outcry over systematic racism was part of the catalyst for the legislation creating the governor's new power, a last-minute amendment to a bill originally drafted to define social equity applicants in the marijuana industry.
The process for how the governor could use the new pardoning abilities was vague in the bill, left open for future rulemaking. At the time the proposal was going through the legislature, several district attorneys expressed a desire for more time than ninety days to work out the mass-pardoning process. Boulder District Attorney Michael Dougherty — who, along with Denver's DA and city attorney, runs of one of two local marijuana record-clearing programs in Colorado — believed that the Governor's Office would be responsible for reviewing and clearing old marijuana charges. Lobbyists and attorneys who worked on the bill's language, however, suggested it would come down to the local level.
Questions remain regarding whether past offenders are supposed to seek and apply for their pardons, as well as how local district attorneys are supposed to streamline issuing those pardons. No state database lists marijuana possession crimes, nor is there an estimate of the number of people who are eligible for the pardon.
Samantha Walsh, a hemp and cannabis lobbyist who pushed the bill, believes former offenders will probably have to apply for their pardons, given the lack of a centralized database. "I don't think it's something that can be done with a stroke of the pen," she explains. "Do the county district attorneys come out with a list of people? That takes a lot of time...It's a complicated process."
Coloradans over the age of twenty have been legally allowed to possess up to one ounce of marijuana since 2012, while medical marijuana patients have been legally able to possess up to two ounces since 2000. Currently, former marijuana offenders whose crimes are now legal must petition their respective courts for a judge's approval to clear their records.
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According to nonprofits dedicated to criminal record expungement, such as the Last Prisoner Project and National Expungement Week, this hurdle has created a significant gap between eligible offenders and those who actually apply.
"You still have to apply or make some kind of request to petition to have your record cleared, but it's still a much simpler process than filing a legal motion. And what we've found in the last couple of years is, there was a really big uptake gap around petition-based processes," Last Prisoner Project executive director Sarah Gersten said in June, when Polis signed the bill.
"By housing the authority within the executive [branch], it cuts down some of that work. It doesn't negate that this is resource-intensive.... It's going to take time for the Department of Corrections and local authorities to work through their systems."
But how much time?