New Mexico’s marijuana record expungement lags behind legalization

LAS CRUCES, N.M. — Thomas Wescott, 24, of Las Cruces, New Mexico, said he has been rejected by multiple employers due to a six-year-old conviction for marijuana possession.  

Today, he works at Sol Cannabis, the first cannabis consumption lounge in the state, which recently legalized recreational marijuana.

Wescott and others like him are poised to benefit from a law that went into effect last year mandating automatic expungement of nonviolent cannabis-related offenses. 

But over a year later, and just a few weeks after recreational marijuana became legal, Wescott said he was unaware that he may qualify for expungement until approached by a reporter. 

 “If I am supposed to be automatically expunged, I would like to have been informed by now,” said Wescott. 

His experience reflects an uneven implementation of new marijuana laws across New Mexico. As a result, someone like Wescott can legally buy or sell marijuana while saddled with a criminal record for the same thing.

Roxanne Garcia-McElmell, a spokeswoman for the District Attorney of Dona Aña County, which includes Las Cruces, confirmed that her office was behind in the process, blaming a lack of funding. 

“It is supposed to be automatic, but it’s not going to happen for a while,” Garcia-McElmell said.  

Emily Kaltenback is the senior director of criminal, legal and policing reform for the Drug Policy Alliance of New Mexico, which played a key role in drafting and advocating the two companion bills that legalized cannabis and mandated expungement. Kaltenback said it was her organization’s position from the beginning that it would not support one without the other. 

“Expungement is important for people who have been disproportionately impacted by the war on drugs,” said Kaltenback. “That includes young people, young people of color and low income young people.”

According to a 2017 analysis by the alliance, the American Civil Liberties Union of New Mexico, New Mexico Voices for Children, and Young Women United, people of color in New Mexico’s largest county were arrested on drug charges at disproportionately high rates, despite having similar rates of drug use and sales as white people. This was in line with national trends, the report noted. 

According to the FBI Uniform Crime Reporting Program, more than 15,000 children and young adults up to age 29 were arrested for marijuana possession from 2010 to 2020. However, that data is based on voluntary reports filed by law enforcement. In 2020, the most recent year available, only 20 out of 128 law enforcement agencies in New Mexico participated. 

Authorities in each of New Mexico’s 13 judicial districts are responsible for sorting through case records related to cannabis and automatically expunging those that qualify. Those currently incarcerated will have their cases reopened for determination of release and expungement. 

According to the law, the New Mexico Department of Public Safety was supposed to notify prosecutors in each judicial district of qualifying cases by this year. Prosecutors have until July 1, 2022 to make a determination.

But progress toward that goal, ahead of the July deadline, varies across the state. 

In New Mexico’s largest judicial district, which covers Albuquerque and the rest of Bernalillo County, a spokesperson said authorities are on track to meet the statutory deadlines. 

“No person has to wait for the automatic expungement of records related to cannabis,” Barry Massey of the Bernalillo County Administrative Office of the Courts wrote in an email.

But Garcia-McElmell, the spokesperson from Dona Aña, said it was “unlikely” her district could finish reviewing cases by the deadline. 

She said her office had not received the list of eligible cases from the state Department of Public Safety, nor had the state provided additional funding to support the effort. 

Dona Aña County Sheriff Kim Stewart echoed Garcia-McElmell’s frustration.

“A lot of laws get written by people who don’t do the work and they leave out the ‘how to’,” Stewart said. 

A fiscal impact report provided by the New Mexico Legislative Finance Committee in March 2021 estimated that the statewide cost of facilitating the automatic expungement process would be about $500,000 over two fiscal years. 

The Drug Policy Alliance had pushed for some of the state’s tax revenue to be put into a specific fund supporting expungement, but that funding was not approved by legislators. 

According to Garcia-McElmell, every agency in the judicial system is backlogged. She recommended people who know they have records reach out to law enforcement and file a request for expungement. 

“It’s really important for young people to understand that the criminal justice system is slow-moving and if they need something done, they need to be proactive instead of reactive,” she said. “Let’s say they got arrested their freshman year of college and are getting ready to graduate and go out for a job — then I would recommend that they actively get it expunged.”

Kaltenback, of the Drug Policy Alliance, said lack of funding is no excuse for not meeting deadlines.

“The timelines are not flexible and they were put in there for a reason,” Kaltenback said. “This is about restoring the harm that people have carried for many years under a prohibition model.”

Some businesses in the now-legal marijuana industry are taking matters into their own hands.

Diajesma Orozco, a manager at ICANNAINVESTING, a dispensary in Las Cruces, said the store intends to donate a portion of its profits to helping eligible people get their records expunged. 

“Some people just are uninformed and need guidance,” Orozco said. “People are trying to change their lives and become better, but they need an opportunity to do so.” 

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