With legalized marijuana on the books, Oregon lawmakers now consider a landmark bill that would help people with marijuana convictions on their records
When Scott Mulgrew was 18 and attending high school in Spokane, he got pulled over for speeding in a school zone. Cops searched his car and found two small bags of marijuana – less than an ounce total – and a scale.
Cops said he confessed to selling drugs to school children, though Mulgrew told Street Roots he never made that confession; that he actually told the cops he took the scale with him to buy marijuana and make sure he was getting the right amount.
“From then on, it was my word versus the cops,” Mulgrew said. His parents hired an attorney and spent about $5,000 and two or three years actively fighting the charge – conspiracy to sell marijuana in a school zone – and conviction.
But the conviction still haunts him 10 years later. Earlier this year, Mulgrew was forced to vacate an apartment where he’d been living for two months after his background check came back and the landlord evicted him due to the felony on his record. He can legally vote in Oregon, but can’t purchase firearms or travel outside the United States, and has struggled to find consistent employment. He supports himself by working as a freelance graphic designer and by washing dishes – freelancing in part because he’s struggled to find regular employment, and has been told after interviewing for jobs that he didn’t get the position due to his criminal record.
All of this continues despite the fact that the state Mulgrew lives in – Oregon – and the state where he was arrested – Washington – have both voted to legalize the drug he was caught with as a young man.
Oregon voted to legalize marijuana last November, and while the Multnomah County District Attorney office announced it would throw out pending cases involving marijuana offenses, the status of people statewide with prior marijuana offenses on their records – and those still incarcerated – is still in flux.
Earlier this month, Rep. Lew Frederick (D-N/NE Portland) introduced House Bill 3372 – which would provide for reduction of sentences for people currently serving time for nonviolent marijuana offenses, and make it easier to expunge marijuana-related offenses from their criminal records. And Senate Bill 364 – which passed out of the Senate last week – requires the court to use the current classification of marijuana offenses when determining if a person is eligible for an order for setting aside conviction.
“This affects whole communities of people,” Frederick said. “When you have a number of people, especially young black men, who are not eligible to get jobs – young black men, young black women – that affects everyone. If we can address that then we can begin to address a lot of other social issues.”
According to Frederick, when the news broke about HB 3372 at the end of February, the public response was almost immediate: he was approached by four different people at a memorial service the following Saturday who thanked him for the bill, and by another when he went grocery shopping shortly after.
It’s hard to say just how many people would be affected by the passage of the proposed bills: According to data released by the Oregon Department of Corrections, as of 2014 just over 200 people were incarcerated statewide for nonviolent marijuana offenses only (including several for offenses that will still be illegal when Measure 91 takes effect, such as selling to minors).
The bill would also only affect those convicted under Oregon statute, so Mulgrew would not be affected by the passage of this legislation. Although Washington, where Mulgrew was arrested, was quicker to legalize pot, it has yet to advance legislation addressing those with past convictions. Mulgrew was under the impression he would be eligible to have his conviction expungeed after eight years, but when he looked into it a year ago, he was told he’d neglected to file some paperwork, and may have to wait another seven years to be eligible.
“The [Oregon] expungement statute is very confusing in terms of eligibility,” said Alex Bassos, director of training and outreach for the Metropolitan Public Defender in Portland. Bassos’ organization conducts a weekly expungement clinic. There’s no attorney fee for the service and no income guidelines or restrictions on who can use it, but they can help clients determine if they’re eligible to have the $252 court filing fee waived.
In Oregon, criminal records can be sealed for certain types of marijuana offenses, but the specifics vary depending on the charge and the amount of time that’s lapsed. For instance, someone convicted of delivery of marijuana can usually have that expunged, where someone convicted of manufacture can’t, Bassos said. The base charge to seal records is $80, with another $252 court filing fee tacked on. The latter can be waived in cases of economic hardship, but the former can’t – and in some counties in Oregon, district attorneys charge an additional fee to get records sealed.
Bassos said Oregon law doesn’t provide for a true expungement, because the Oregon Constitution’s free speech clause doesn’t allow officials to say a particular crime never happened. Instead, eligible crimes are sealed from the public record – including court records and databases maintained by law enforcement.
“The Oregon statue says that all official records are sealed. It does a pretty good job regulating those official records. The person talking to you probably doesn’t have access,” Bassos said.
It can take up to several months from the initial filing before records are officially sealed – and currently, the law doesn’t regulate private, third-party background check companies, which purchase information from judicial departments around the country but don’t necessarily update their databases when people petition to seal their records. People are within their rights to write the company asking them to correct errors in their database and to sue if they lose housing or employment as a result, Bassos said.
“There’s a truck-sized hole in our expungement statute, and that’s bad,” Bassos said.
The number of people with prior convictions is likely lower in Oregon because the state made possession of less than an ounce of marijuana a civil offense in the 1970s. The agency did not have data on the number of people on parole or probation, or the number of people living in the community with marijuana offenses on their records.
According to the American Civil Liberties Union, African-Americans statewide are more than twice as likely to be arrested for marijuana possession – and the discrepancy is more glaring in Multnomah County, where blacks are more than three times as likely as whites to be arrested for marijuana possession. That’s despite the fact that African Americans make up just 2 percent of Oregon’s population, and nationwide surveys on illicit drug use show that whites are more likely to use the drug, and illicit drugs in general.
“When Measure 91 was moving through the electoral process, we were really aggrieved that no one mentioned the obvious, that no one mentioned that there are hundreds if not thousands of folks of color who are serving time for relatively minor offenses for marijuana,” said Midge Purcell, director of advocacy and public policy for the Urban League of Portland. “Now we have a situation where this is being looked upon as a prime opportunity for entrepreneurship. That conversation rarely includes communities of color, and there are many, many people languishing in prison for the same or similar activities.”
Among jurisdictions that have legalized pot, Oregon is unusual in that it’s even considering addressing the criminal justice aspect of legalization, according to Michael Tennison, a research associate at the Criminal Justice Policy Foundation.
“I think there’s a lot of political courage there to not just recognize but own up to the failure of the war on drugs, and address the people caught up in the war on drugs,” Tennison said.
According to Tennison, Maryland is considering a bill that would allow for the expungement of records relating to convictions for those possessing less than 10 grams of marijuana, and last year possession of 10 grams or less a civil offense punishable by a fine of no more than $100, similar to what Oregon did in 1973. Missouri is considering a bill that would allow some marijuana convictions to be expunged for certain people, effective immediately should the state ever legalize the drug. New Jersey, New York and Rhode Island are considering similar bills. Under California’s Proposition 47, people with marijuana felonies can have them reduced to misdemeanors on their records.
“No other state has gone this far,” Tennison said in reference to the proposed Oregon legislation.
Tennison also noted the United States is unique in that it even needs to consider bills like HB 3372 and SB 364: 90 percent of countries around the world already provide for the retroactive adjustment of criminal records and freeing prisoners when a law changes. “Lawmakers have to appear tough on crime, and letting people out of prison doesn’t have the same economic benefits as regulating the whole industry.”
Rep. Frederick said HB 3372 was spurred in part by broader concern about the status of people with felony convictions. In Oregon, convicted felons can vote, but still face legal discrimination when it comes to employment, housing and government benefits.
Frederick is a vocal supporter of the Ban the Box movement – a nationwide campaign to remove questions about felony convictions from job applications but allow background checks to occur once a conditional job offer has been made. Last week the Portland City Council, which is considering a Ban the Box ordinance, held a three-hour hearing and received thousands of petitions from people in support of removing questions about felony convictions.
Advocates argue that among released prisoners who secure at least a year of employment, the rate of recidivism is just 16 percent. The general rate of recidivism is more than 52 percent.
“Something needs to be done to close the revolving door of recidivism,” Purcell told Street Roots. “Having a job and also having housing are the two best ways of avoiding recidivism. We have a responsibility, and also it just makes sense to ensure people are employable.”
James Posey, a business owner and formal mayoral candidate, testified at the hearing on behalf of the Coalition of Black Men and advocated that the city needs to encourage businesses to hiring those they consider high-risk.
In an interview with Street Roots, Posey spoke in support of both the Ban the Box campaign and House Bill 3372 as part of of an effort to roll back the war on drugs, but noted that more needs to be done to repair the damage.
Posey noted the recent push toward legalization of marijuana is largely because the drug has become socially acceptable in white communities. In “The New Jim Crow,” author Michelle Alexander notes a general historical trend where drugs associated with communities of color, particularly African American, media, government officials and the medical community tend to portray it as dangerous and link it to other criminal behavior. But once it becomes popular among whites – as marijuana did in the 1970s – it’s perceived as more innocuous. That same discrepancy persists in the difference in perception and punishment for powdered cocaine use versus crack cocaine, he said: “You decide you want to do crack cocaine and you’ve got a felony on your record, you’re dead meat. You’re road kill.”
“There’s a huge need to figure out ways to reclaim lost lives,” Posey told Street Roots. “Short of an organized effort to do it, it’s not going to happen.”
Mulgrew said he thinks the difficulty in shedding convictions creates a cycle for a lot of people caught up in the justice system. “They put these labels and these convictions on you, and that’s why a lot of criminals remain criminals. Just going through the whole thing showed me it’s not justice for all. It’s justice for some, and mostly for those who can afford it.”
