Cannabis convictions: Petitioning now-unjust convictions, a step toward alleviating disparate impacts

Montanans voted to legalize recreational cannabis in November 2020. The legislature created laws and regulations in the 2021 session, and as of January 1 this year, adults in Montana have been able to purchase and recreationally use the formerly illegal substance. Below we provide an overview of the legalization process, guidance on petitioning cannabis conviction, and discuss why decarceration is important. 

What has happened so far?

In the November 2020 election, Montanans passed Constitutional Initiative 118 and 190. Together, these initiatives legalized the recreational use of cannabis for people over 21 and outlined a system of legalization to be overseen by the Montana Department of Revenue to regulate and tax cannabis sales. 

On May 18, 2021, Gov. Greg Gianforte signed House Bill 701. Among other things, HB 701 established January 1, 2022, as the starting date for legal cannabis sales, limited home cultivation of cannabis to two plants, and established a process for expunging and reclassifying cannabis convictions. Renters must have written permission from landowners to grow on their property. Possession of more than one but less than two ounces of cannabis is now a civil infraction with a possible community service sentence or fine. Possessing more than two ounces is still a felony.  Read the full legislation here. 

On January 1, 2022, recreational cannabis sales began. In the first quarter alone, sales generated $72.9 million, and people have already begun petitioning their cannabis convictions. 

Petitioning cannabis convictions 

Under the new law, those with criminal convictions that are not illegal anymore may petition to have their record cleared if they have already completed the sentence, or they can petition to be re-sentenced if they are still serving the sentence. Those with cannabis convictions that are now civil infractions under the new law may petition to have their convictions re-designated. The law says that unless a prosecutor can raise a legitimate issue against a petition that judges reviewing expungement cases must presume they qualify. 

In March, the Montana Supreme Court clarified the process for seeking expungement. Their order directs people to submit their expungement request to the court that originally sentenced them. 

How to petition cannabis convictions 

There are forms on the Montana Judicial Branch’s website for expungement, re-sentencing, and re-designation of cannabis convictions. There are also directions for how to submit these forms without an attorney. View the forms and directions here. 

These forms are also placed in self-help law centers around the state. Find your closest Court Help Program and make an appointment here. 

What to expect when petitioning  

Seaborn Larson reported for the Montana News Bureau in December 2021 that those petitioning in Billings, Bozeman, and Missoula have experienced relative ease with the process but that some in smaller counties have faced uphill battles. 

One of the most alarming examples is Paul Hager in Richland County. He petitioned for his 2015 conviction for possessing 0.06 grams of cannabis, which is now legal. His original sentence was five years on probation. In response to his petition for expungement, a judge re-sentenced him to five years in prison. This sentence is two years longer than the law allowed prior to the legalization of cannabis. Paul’s attorney brought his case to the Montana Supreme Court, and they ordered him to be immediately released from prison. 

“There is a stigma against cannabis,” Paul’s attorney Teal Mittelstadt told the Montana News Bureau in an email. “I cannot speak to the entire state, but in the counties I have practiced, it is present.”

In other cannabis cases that have reached the Montana Supreme Court, rulings have strictly applied the rules set by the legislature in 2021. The takeaway is that some people are experiencing pushback in smaller counties. The Montana Supreme Court has so far demonstrated that they will take action to correct district courts who apply the new law incorrectly, but it is unlikely that someone will win in a case that does not fall squarely within the new law. 

Why is decarceration for cannabis convictions important?

As is the case with most criminal justice reforms, decarceration of people with now-legal cannabis convictions is a slow process with speed bumps along the way. Nonetheless, this is an important step toward reducing mass incarceration, unraveling the stigmatization of cannabis use caused by the War on Drugs, and alleviating the disparate impact of cannabis arrests and convictions on Black, Indigenous, and People of Color.

“The War on Drugs, cloaked in race-neutral language, offered whites opposed to racial reform a unique opportunity to express their hostility toward blacks and black progress, without being exposed to the charge of racism,” Michelle Alexander wrote in her book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”

In 2018, the American Civil Liberties Union reported that Montana had the highest racial disparity in arrest rates for possessing cannabis in the nation: Black Montanans were 9.6 times more likely to be arrested than White Montanans, with Gallatin County having the highest disparity in the state. Cannabis usage rates are almost identical along racial and ethnic lines. 

“For those who say that the War on Drugs and the system of mass incarceration really isn’t about race, I say there is no way we would allow the majority of young white men to be swept into the criminal justice system for minor drug offenses, branded criminals and felons, and then stripped of their basis civil and human rights while young black men who are engaged in the same activity trot off to college,” Alexander wrote. “That would never be accepted as the norm.”

Read more about mass incarceration here.