Expunging county Marijuana convictions a slow process
Perry County Circuit Clerk Jennifer Hotop smiles as she recalls the day she took office on Jan 1, 2019. She had no idea what she was in for.
While Hotop was prepared to take on the many duties of the office, she had no way of knowing that in November 2022, she and all of the other circuit clerks in Missouri would be given a monumental task. They were expected to review every marijuana case in the county, going back to the 1970s, to determine which ones needed to be expunged under a new state cannabis law — and the entire project was supposed to be completed within a year.
"I always laughed at my predecessor, Becky Paulus. I thought, 'Man, you knew when to get out.' She joked with me about it too. She's like, 'I'm glad I got out when I did.'"
Under the 2022 constitution amendment that legalized marijuana, Missouri courts were required to complete misdemeanors by last June and felonies by last December. While the deadlines came and went, Perry is one of many counties across the state still months or more away from completing the task.
"There's no manpower to get this done," Hotop said. "Not understanding the courts, they called it 'automatic expungements.' There's nothing automatic about this. We have to physically go through and do this."
Hotop estimated Perry County had more than 3,000 cases to be reviewed, stretching from 2022 back to 1972 — a span of 50 years.
"I don't know how accurate that's going to be once we get to paper only, but that's my projection based on what I have from '93 forward," she said. "We're able to run reports for our county to show us what is possibly eligible for an expungement, but the reports only go to 1993.
"It first became illegal in 1972. Before 1993, they were not in our computer system. We have to go in and check that physically. We do have indexes. At some point, they're on index cards based on case type and name. And then before that, they're on books."
Due to the sheer magnitude of the project, Hotop has had to lean heavily upon her staff to perform the research needed.
"When I took office, all of my clerks had 20 years plus experience, which I guess maybe helped," she said. "Now I've had a complete turnover. I knew they were all nearing retirement. We had two that retired with 35 years' experience this year. There are a lot of changes, but it's all good. The other side is that I can't just hire someone off the street to come in and do this, so it takes my existing staff."
Hoptop considered herself lucky that one of her clerks could spend extra hours working on the project.
"She found time that she could work during her regular hours to get the project going by setting up how we were going to go about this," she said. "She worked on it for about a year, and then she retired. Then we had about three months in there to get our bearings. Everyone was learning something new, and now my two newer girls are at a point where they're working extra hours to work on this project."
The state has funding available to pay Hotop's staff for the additional time needed to perform the research, but she has to provide numbers that reflect the need.
"For me to be able to get funding from the state of Missouri to give us extra hours to work on this project, I've got to tell them how many cases I think I have and how much time I think it's going to take to do this," she said. "So, I estimated we have a total of 3,120 cases to review from '72 to '22."
Hotop and her staff have reviewed 951 cases thus far. Of that number, 692 have been expunged, and 259 have been deemed ineligible for deletion.
"The reports tell us what cases have controlled substance charges," she said. "It's not specific to marijuana. It could be meth. It could be under the influence of multiple other things. We've got to go in and see the probable cause statement to find out what they actually had. It would be great if it was just marijuana, but it's not.
"We're looking at, number one, is it marijuana? Number two, if it is marijuana, was it for personal use? And that's where the judges have to make that determination. The clerks are going through and looking. We're pulling the files. Number one, are they eligible? If it's possible, then we get it over to the judge, who either currently has the case or inherited it from their predecessor."
Once the case summary is in the judge's hands, they have the choice of deleting the conviction or declaring it ineligible. Once the judge signs the expulsion order, it returns to Hotop's office, where the physical act of expulsion is performed.
"The clerk has to expunge the case, seal it, and close it," she explained. "If it's a complete case — like imagine someone was charged with marijuana and paraphernalia and nothing else — we can seal the entire case, we're done. Suppose they have that plus speeding, failure to register, and multiple other counts. In that case, we have to go back and expunge only the information to do with marijuana, which means redacting the records for just the marijuana counts, which is very time-consuming.
"When we took this over, we tried to do the complete cases first because they were easiest for us to jump onto and get our heads wrapped around. What's the process? How are we going to tackle this? The state gives us directives on how to do this, but you can see there are multiple steps. We've got to see what works for us, what works for our judges, and how we will do this. We have the reports, and the judge is reviewing them. I have no reports there, so we have to manually go through the indexes to find those charges, pull the physical files, and get that to the judge to review."
After the work has been completed, letters are sent to the last mailing address of those whose records have been deleted, informing them of their cleared record. The problem is that few people still live at the same mailing address they were 10 years ago, much less 50 years ago. Others, who are now deceased, have their records expunged, nevertheless.
"We still have to mail them because we may not know they're deceased," Hotop said, "so the return mail also has to get processed."
Making the project even more time-consuming for Hotop and her staff are the various methods that must be employed to perform the necessary research on each case. From 2012 to 2022, the records are on the circuit clerk's computer database. From 1993 to 2011, however, the information is there, but the documents aren't scanned in.
"So, we've still got to go back and pull the physical file and see what happened," Hotop said. "When I get to paper only, which means before 1993 when they're not in our database, we're going to create a shell case so that there is some type of record that we expunged. That means the clerks are not only sealing and taking care of redaction, but they also have to create a case in the database so that we have a report that we can run and the state can keep track of it. And then the old ones — are in these books. So, this is the timeline I'm looking at because there's a point where, from 2012 to 2022, they're all on our database. But from 1993 to 2011, the information is there, but the documents aren't scanned in."
For cases filed between 1976 and 1992, the research involves reviewing index cards and paper files. If the case occurred earlier than 1976, Hotop's staff has to look them up in large bound volumes stored in the courthouse basement.
Asked how much longer she believes the expungement project will take, Hotop said, We're about a third of the way through. If my numbers are right, I don't think we'll be done with the rest of them in the next 12 months, but I feel like the numbers might be a little off. I feel like we could possibly get done in the next year.
"The timeline was set by the ballot initiative, not the state, so the state understands we have multiple other things that we need to be working on, and this is not something that's possible now. Those deadlines are way past at this point."
Hotop is well aware that working on a project as time-intensive as this can quickly overwhelm her staff.
"The problem for us and every other court in the state is that this is a huge project, and if I put my staff on multiple hours a week doing this, it's daunting, and they get burnt out quickly," she said. "So, as a supervisor, I'm making sure my girls aren't working too many hours extra a week. They're already working 40 hours a week, so I put a cap on it. Let's be realistic here. If you want to work extra, maybe do one or two hours a day, not every day. If you want to come in on a Saturday, let's just do a couple of hours, not eight hours. I don't want to risk clerks getting burnt out, quitting their jobs and leaving. Some other counties have seen this. So, while the project is important — everything we do is important — we have to realistically keep in sight how we will get this done.
"What I believe is going to happen is when I get closer to 1972, there may not have been that many cases filed for that then. As you can imagine, there was a different frame of mind at that time. So maybe it wasn't as big of a deal. Maybe they weren't issuing violations, and users didn't have charges filed. The other thing I'm wondering, too, is because we took complete cases in the beginning when we first started this out. The report showed a certain number of cases we had to review, and the counties were starting to see only 20% were eligible. My numbers were the opposite. We were having 70% eligible. I also wonder if maybe we took the easier cases first, so it's a little skewed. Maybe once we get further into it, there will not be quite that many eligible. We'll have to see."
Hotop offered some advice for anyone convicted on charges involving the private possession or use of marijuana in Perry County who believes their records may be eligible for expungement.
"They can call into our office at 573-547-6581, and we can try to move them up on the list, get them reviewed earlier than where we have them on the schedule, and we can see if they're eligible," she said. "If they are eligible, we'll mail an order to their address. So that's the other thing. If they feel like they may be eligible, they should contact us and give us a good address."
