Seven years after legalization, Denver residents will now have the opportunity to seal their low-level marijuana convictions from before the state’s cannabis legalization law, Amendment 64, passed.
The Turn Over a New Leaf Program was announced in January by Denver Mayor Michael Hancock and District Attorney Beth McCann. The Denver Post reported the program has the potential to help over 13,000 residents of Denver being held back by an old conviction.
Since the end of last month, 138 applications have come in. Of those applications, five people have already had their records sealed and 32 people are still potentially eligible, pending some further verification, according to updated data provided to Cannabis Now by officials.
Eric Escudero is the director of communication for the Excise and Licenses Department for the city and county of Denver. He gave us a breakdown of the results so far for the program.
“The 32 are pending and appear eligible, but are completing the process to verify,” Escudero told Cannabis Now. “The rest that applied were not eligible for a variety of reasons. Most of them were not eligible because their low-level marijuana-related conviction was not in Denver, their conviction was not a low-level marijuana conviction or they had a conviction for another drug-related crime that is not a part of this marijuana-only program.”
Escudero explained the program was first conceived by the mayor as part of his priority to address equity in the cannabis industry.
“Too many people are disproportionately affected by the War on Drugs, and the mayor thought that this is one area we could make a difference. So back in June, he directed my office to look into clearing the records of people of low-level marijuana crimes.” The mayor was particularly concerned about a past offense preventing someone from participating in the now booming marketplace.
Escudero said they wanted to make sure to do it right, not fast. With the intention to do the best job they could, things kicked into high gear. “Fortunately we were able to finally get this going with the clinics that launched this month,” said Escudero.
With 13,000 folks eligible, how did they go about casting as big a net as possible?
“That’s the challenge. What we want is to clear everybody that’s eligible,” said Escudero. “Our goal would be clearing every one of them.” But Colorado law prevents mass convictions from being done away with in one swoop of the pen. This is why the clinics were developed to meet with everyone in person.
Escudero shared some of the stories from the first clinic. One woman had a possession charge for five plants, which would now be legal in Denver. Another person had a 15-year-old possession charge catch up to him at the final stages of a job interview.
Local Equity Leader Stresses Record Sealing Isn’t Enough
Leading Denver cannabis advocate, entrepreneur and former mayoral candidate Kayvan Khalatbari stepped away from a Minority Cannabis Business Association summit to tell us about his opinion on the new policy. The Denver Relief co-founder has been at the heart of the city’s progressive politics for a decade, and never have those politics intertwined more with the cannabis industry than in the equity program.
“I couldn’t have this conversation without saying how disappointed I am that the city — the mayor, in particular, [who has been] an intense opponent of the cannabis industry, because he waited ‘til an election year to start talking about this,” Khalatbari told Cannabis Now.
Khalatbari notes many others, including the MCBA and Drug Policy Alliance, have been advocating for this kind of move to the mayor’s office for seven years. “And he’s just now getting around to saying he wants this to happen because it’s an election year.”
Khalatbari went on to note he was happy the issue was finally being looked at, but he had hoped some folks with a bit more experience on the subject would be involved in the process. MCBA did a record sealing clinic in Denver a couple years ago that he feels provided a framework on how it could be accomplished. The city is now following suit with its series of events. Khalatbari said neither he or MCBA were asked to take part in the events or wider equity program.
“None of the equity program we were asked to be a part of, even though we’ve had a model state bill that got released three years ago. We have a model municipal ordinance getting picked up right now,” said Khalatbari. “This is an administration that’s pushed back on everything I’ve ever said about equity programming, lack of people of color in the licensed space there, all of that.”
Record Sealing vs. Expungement
Khalatbari says one of the main reasons he wished advocates had been involved is the confusion around the language being used. As Khalatbari says, “The city keeps calling it an expungement program, but it is not.” He clarified that it’s a record sealing program because the records don’t go away.
“Expungement and record sealing are two very different things,” said Khalatbari. “An expungement is predominantly precluded from taking place in the state of Colorado because of coarse state law.”
This issue was something the previous clinic was meant to shine a light on, according to Khalatbari. He believes they were able to get some lawmakers educated on the reality of the situation when it came to helping low-level marijuana offenders.
With expungements, the cannabis crime is removed from someone’s record permanently. When records are sealed, it’s closed to everybody but law enforcement and regulatory agencies. Law enforcement is still able to profile based on those previous arrests, and those disproportionately hit communities of color the hardest, according to Khalatbari.
When asked about the language differences between expungements and record sealing, Escudero said the state officials will be as helpful as they can if the state wants to push the issue and pass a law allowing for expungements, but they’re not going to sit around and wait.
“State legislation can be a slow process,” said Escudero. “Meanwhile, while that’s happening, there many people are out there who basically have a life sentence. When they’re applying for a job, they have to worry about this. Maybe when they’re applying to get into an apartment.”
The ‘Ban the Box’ Movement Persists
Khalatbari raised another loophole that Denver’s record sealing program doesn’t address.
“This also doesn’t fix the ban the box issue,” said Khalatbari, pointing to the national movement to ban the box about previous criminal history from the initial interview process to give past offenders a fair shot. It doesn’t preclude a company from ultimately running a full background check, but opponents argue the box is a tool for small businesses that can’t afford to be as thorough when screening applicants.
“Even though you’re expunging or record sealing, when somebody goes to apply for an apartment or job and they’re asked if they’ve ever been convicted if they say no, even if it’s expunged, they’re lying,” said Khalatbari.
To those concerns, Escudero said there would be no background check where this could come up. “That’s the whole point,” he said.
Khalatbari went on to call expungements and record sealing just a piece of the puzzle when trying to build real equitable cannabis programs.
“Take Massachusetts, for example,” he said. “They just unveiled the first statewide equity program. But people aren’t participating, why is that? Because of a lack of capital. And that’s what it comes down to.”
Khalatbari notes the start-up costs alone can be daunting and easily run half a million dollars. “These folks can’t get a loan for that in the traditional space, nevermind the cannabis industry,” he said.
What Khalatbari thinks needs to happen, and what he doesn’t think will happen, is some of the massive municipal revenue being driven in places like Denver needs to be used to help equity applicants get off the ground.
TELL US, does your city allow for cannabis record expungements or record sealing?