By Dea Cortney and Samuel Edmunds
With the recent passage of HF 100,1 Minnesota became the 23rd state to decriminalize or legalize some recreational uses of cannabis.2 In so doing, the state also recognized the need for justice reform by implementing significant changes related to expungement and resentencing. Expungement allows individuals with past convictions for certain cannabis offenses to have their records sealed, offering them a clean start and a chance to rebuild their lives. In this article, we will discuss the recent marijuana law changes in Minnesota, with a focus on expungement and its impact on individuals and communities.
Minnesota’s journey toward marijuana legalization has been gradual. As far back as 1976, Minnesota decriminalized the possession or sale of a small amount of marijuana, defined as less than 42.5 grams.3 In 2014, the state passed a law allowing the use of medical marijuana for certain qualifying conditions.4 This initial step toward recognizing the medicinal value of cannabis laid the foundation for future reforms. Last year, the Legislature legalized certain low-dose, hemp-derived edible THC products.5
This year’s final legislation-turned-law is a 300-plus-page bill that made its way through 30 committees in the House and Senate and a trip to the conference committee before passage in both bodies. Upon signing the bill, Gov. Tim Walz stated: “We’ve known for too long that prohibiting the use of cannabis hasn’t worked. By legalizing adult-use cannabis, we’re expanding our economy, creating jobs, and regulating the industry to keep Minnesotans safe.… Legalizing adult-use cannabis and expunging or resentencing cannabis convictions will strengthen communities. This is the right move for Minnesota.”6
The new cannabis statute repeals, amends, and adds over 100 provisions to our law books.7 The new law contains nine articles, many of which focus on business and regulatory matters associated with the cannabis industry. This analysis will focus on Article 5, which deals with expungement and resentencing.
Understanding expungement
Article 5 of the new law focuses on the expungement of criminal records associated with Minnesotans’ prior cannabis convictions and the resentencing of certain prior marijuana criminal convictions.
Expungement is a legal process that allows individuals to clear their criminal records of certain offenses,8 giving them a fresh start and removing the barriers associated with past convictions. In the context of marijuana law changes in Minnesota, expungement is an essential aspect of promoting fairness and equity. Expunging marijuana-related convictions means that individuals can end or avoid long-term consequences that hindered employment prospects, housing opportunities, and access to educational and financial resources caused by prior convictions.
One of the primary motives for revising expungement laws related to marijuana was to rectify the disproportionate impact of cannabis-related convictions on marginalized communities, especially communities of color.9 Nationwide, it has been well-documented that individuals from such communities are more likely to be arrested and convicted for marijuana offenses despite similar usage rates compared to other racial groups.10 For instance, the ACLU found that Black Minnesotans are more than five times more likely to be arrested for a marijuana-related offense than white Minnesotans.11 These convictions often result in lifelong consequences, hindering employment prospects, housing opportunities, and access to education.12
Minnesota’s legislative reforms were aimed at addressing these systemic inequities by providing a pathway for individuals to clear their records and escape the cycle of discrimination perpetuated by past marijuana convictions.13 Another significant motivation for expungement reform is to align Minnesota’s laws with the changing legal landscape of cannabis. As more states across the nation embrace recreational marijuana use, it becomes increasingly evident that individuals with prior convictions face unfair consequences in a system that no longer considers their actions criminal.
Recognizing this discrepancy, Minnesota sought to remove the barriers associated with past convictions and allow individuals to fully participate in the emerging legal cannabis market. Expungement reforms can serve as a bridge between the past and present, acknowledging the evolving acceptance of cannabis in society.
Expungement criteria and process
Article 5 of HF 100 (now 2023 Session Law Chapter 63) sets forth a process for the automatic expungement of certain lower-level cannabis offenses (essentially those convictions that will no longer be crimes) and creates a Cannabis Expungement Board to review felony offenses for potential expungement.
Automatic expungement
Beginning August 1, 2023, prior offenses that will receive automatic expungement include:
- Cases resolved with a §152.18 dismissal and discharge of proceeding (stay of adjudication) for a violation of fourth-degree sale or possession, fifth-degree sale or possession, or marijuana in a motor vehicle/possession of a small amount (Minn. Stat. §§152.024, 152.025, and 152.027, respectively).
- Convictions or stayed sentences for marijuana in a motor vehicle/possession of small amount (Minn. Stat. §152.027, subd. 3 or 4).
- Charges that resulted in dismissal prior to a finding of probable cause or resolutions in favor of the petitioner.14 Note also that a verdict of not guilty by reason of mental illness is not a resolution in favor of the petitioner.15
Although the process is “automatic,” meaning individuals do not need to submit an application, petition, or motion, it won’t be instantaneous. The BCA first has to run background checks and then notify the judicial branch of the expungement, which then has 60 days to seal the records.16 Upon receiving notice, the judicial branch shall also order all related records to be sealed, with the exception of Department of Health and Department of Human Services records.17 The BCA has estimated that it could take up to a year for the agency to process the automatic expungements.18
The new law specifically states that the BCA must provide information on its website regarding noncitizens’ potential need to obtain copies of records affected by expungement in advance, details on how to obtain these copies, and advising that a noncitizen should consult with an immigration attorney regarding expungement of records.19
Review by Cannabis Expungement Board
The new law established the Cannabis Expungement Board, comprising the chief justice of the Minnesota Supreme Court, the Attorney General, the Commissioner of Corrections (or their designees), a public defender, and a member of the public.20 The board will obtain and review all available records to determine whether a person committed an act involving the sale or possession of cannabis that would either be a lesser offense or no longer a crime after August 1, 2023.21
The new statute specifically delineates eight felony marijuana sale and possession offenses22 that may be eligible for expungement or resentencing to a lesser offense if:
- the offense did not involve a dangerous weapon, the intentional or attempted infliction of bodily harm, or an act committed with intent to cause fear of immediate bodily harm or death;
- the charge would either be a lesser offense (i.e. non-felony) or not a crime after August 1, 2023; and
- the conviction was not appealed, any appeal was denied, or the deadline to file appeal has expired.23
For both automatic expungements and those that go through the review board process, expungement is “presumed to be in the public interest unless there is clear and convincing evidence that an expungement or resentencing to a lesser offense would create a risk to public safety.”24 This represents a lowered burden for petitioners compared to the standard under Minnesota’s general expungement statute, 609A, which provides that “expungement of a criminal record is an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield benefit to the petitioner commensurate with the disadvantages to the public and public safety…”25
The new procedures for automatic expungement and review by the Cannabis Expungement Board do not preclude the use of preexisting pathways to expungement. Under prior expungement law in chapter 609A, petitioners may file a petition for expungement directly with the district court. Depending on the outcome of the individual case, applicant may have a presumptive-expungement-type case, or a burden-on-the-petitioner-type case. In either case, the applicant may be able to obtain expungement relief from a prior marijuana conviction faster than the automatic or review board processes might achieve. Members of our bar who are experienced in expungement litigation should be able to offer this legal service.
Expungement’s impact on individuals and communities
Expungement has far-reaching implications for individuals and communities affected by past marijuana convictions. For individuals, expungement offers a new lease on life, removing the stigma and barriers associated with a criminal record. It opens doors to employment, housing, education, and other opportunities that were previously out of reach.
Moreover, the expungement of marijuana-related convictions benefits communities. By allowing individuals with past convictions to reintegrate into society more successfully, it reduces the burden on social services and decreases the likelihood of recidivism.26 Expungement also helps address the racial and social disparities that have disproportionately affected marginalized communities due to the war on drugs.27
The Minnesota Bureau of Criminal Apprehension (BCA) estimates that 60,000 misdemeanor marijuana cases will be eligible for automatic expungement under the new law.28 It is unclear how many felony cases will qualify for review by the Cannabis Expungement Board once it is created. A manual review of cases will be required because the state’s criminal history system is unable to sort felony drug possession and sale cases by the type of drug involved.29
Challenges and future considerations
While Minnesota’s expungement reforms are a significant step forward, challenges and considerations remain. One challenge is ensuring access to information and resources for individuals who may not be aware of their eligibility for expungement. Education campaigns and outreach efforts are crucial to reach those who could benefit from the law changes.
It will also be vital to monitor the implementation of expungement laws to ensure fairness and equal access. Evaluating the effectiveness of the expungement process, addressing any potential biases, and making necessary adjustments are key to ensuring that the benefits of expungement reach all affected individuals.
Minnesota’s recent marijuana law changes, particularly those related to expungement, reflect a commitment to justice reform and addressing the long-term consequences of outdated drug policies. By legalizing recreational marijuana and allowing for expungement of certain cannabis-related offenses, the state is providing individuals with a second chance and dismantling barriers to opportunity. Moving forward, continued efforts to educate, support, and evaluate the expungement process will be essential to maximizing the positive impact of these reforms on individuals, communities, and the overall criminal justice system.
DEA CORTNEY is a criminal defense attorney at Sieben Edmunds Miller, where she has worked since she was a clerk in law school. She is a 2020 graduate of Mitchell Hamline. Dea serves on several boards and committees including the MSBA New Lawyers and Criminal Law Sections. She enjoys traveling, photography, and is currently studying German.
SAMUEL EDMUNDS is a criminal defense lawyer practicing throughout Minnesota and Wisconsin. He is a board-certified criminal law specialist, a former prosecutor, and a two-time Attorney of the Year award recipient. Sam also volunteers his time to advancing the profession through the bar associations at the state and national levels. He is the current president-elect of the Minnesota State Bar Association, and he will serve as the 142nd President of the state bar in 2024-25.
Notes
1 Minnesota House of Representatives 2023 House File 100, now known as Minnesota Session Laws 2023, Regular Session, Chapter 63, H.F. No. 100. See https://www.revisor.mn.gov/laws/2023/0/Session+Law/Chapter/63/
2 Matt DeLong, Ryan Faircloth, and Brooks Johnson, What You Need to Know about Minnesota’s Marijuana Legalization Bill, StarTribune, 5/20/2023 https://www.startribune.com/minnesota-marijuana-legalization-bill-law-cannabis-cultivation-dispensaries-business-pot-weed-legal/600275325/#:~:text=It%20legalizes%20the%20possession%20and,cannabis%20and%20hemp%2Dderived%20markets.
3 Laws of Minnesota 1976 Chapter 42.
4 Minnesota Department of Health, Medical Cannabis Program Key Dates, 3/22/2023, https://www.health.state.mn.us/people/cannabis/about/timeline.html . See also Minn. Stat. §§152.21 – 152.37.
5 J. Patrick Coolican, The Legislature Stumbles into Legalizing THC, for Better or Worse, Minnesota Reformer, 7/1/2022 https://minnesotareformer.com/2022/07/01/the-legislature-stumbles-into-legalizing-thc-for-better-or-worse-column/. See also Minn. Stat. §151.72.
6 WCCO Staff, Gov. Tim Walz Signs Recreational Marijuana Bill into Law, CBS NEWS MINNESOTA, 5/30/2023, https://www.cbsnews.com/minnesota/news/gov-tim-walz-signs-recreational-cannabis-bill-into-law/.
7 Minnesota Session Laws – 2023, Regular Session, Chapter 63, H.F. No. 100, infra, note 1.
8 See Minn. Stat. ch. 609A.
9 See Grace Birnstengel, If Minnesota legalizes weed, will marijuana-related criminal records be cleared? MPR NEWS, 5/1/2023, https://www.mprnews.org/story/2023/05/01/if-minnesota-legalizes-weed-will-marijuana-related-criminal-records-be-cleared.
10 See e.g. Racial Disparities in Marijuana Arrests, NORML, 2023, https://norml.org/marijuana/fact-sheets/racial-disparity-in-marijuana-arrests/.
11 Lynette Kalsnes, Black People Five Times More Likely to Get Arrested for Marijuana in Minnesota, ACLU Minnesota, 4/20/2020, https://www.aclu-mn.org/en/press-releases/black-people-five-times-more-likely-get-arrested-marijuana-minnesota.
12 R. Allyce Bailey, Serving Time and It’s No Longer a Crime: An Analysis of the Proposed Cannabis Administration and Opportunity Act, Its Potential Effects at the Federal and State Level, and a Guide for Practical Application by Local Government, 25 UDC/DCSL L. REV. 5 (2022).
13 See Briana Bierschbach, Minnesota Legal Marijuana Advocates Focus on Racial Equity, Star Tribune, 5/11/2021, https://www.startribune.com/minnesota-legal-marijuana-advocates-focus-on-racial-equity/600056064/.
14 Minnesota Session Laws – 2023, Regular Session, Chapter 63, H.F. No. 100, infra, note 1.
15 Id.
16 Id.
17 Id.
18 DeLong, Faircloth, and Johnson, infra, note 2.
19 Minnesota Session Laws – 2023, Regular Session, Chapter 63, H.F. No. 100, infra, note 1.
20 Id.
21 Id.
22 Minn. Stat. §§152.021, subd. 1(6); 152.021, subd. 2(6); 152.022, subd. 1(5) or 152.022, subd. 1(7)(iii); 152.022, subd. 2(6); 152.023, subd. 1(5); 152.023, subd. 2(5); 152.024, subd. 1(4); and 152.025, subd. 2(1).
23 Minnesota Session Laws – 2023, Regular Session, Chapter 63, H.F. No. 100, infra, note 1.
24 Id.
25 Minn. Stat. §609A.03, subd. 5.
26 Bailey, infra, note 12.
27 Id.
28 DeLong, Faircloth, and Johnson, infra, note 2.
29 Id.