Hawaii Senate Panel Guts House-Passed Marijuana Expungements Bill, Limiting It To A Single-County Pilot Program

Hawaii Senate Panel Guts House-Passed Marijuana Expungements Bill, Limiting It To A Single-County Pilot Program

A Hawaii Senate panel has significantly scaled back a measure that—as passed by the House last week—would have directed the state to automatically expunge tens of thousands of arrest and conviction records for low-level marijuana possession, amending the proposal to instead limit the relief  to a one-county pilot program. The move comes as lawmakers in the state are also advancing separate legislation that would legalize cannabis.

“Instead of the bill’s statewide automatic expungement program for arrests and convictions,” said Sen. Karl Rhodes (D), chair of the Senate Judiciary Committee, said at a hearing onTuesday, “I propose that we adopt the attorney general’s pilot program for state-initiated expungement of marijuana possession arrests.”

As for where the pilot program would be located, “I was thinking of Hawaii County,” Rhodes added. That county, comprising the Big Island, is the state’s second most populous after Honolulu County and is home to about 14 percent of the state’s population.

Further, the measure would only apply to criminal cases “terminated with a final disposition other than a conviction.”

The five-member panel advanced the amended measure unanimously.

While there’s already a process in place to request record sealing from the courts following the state’s decriminalization of small amounts of cannabis about four years ago, advocates say the process can be difficult to navigate, often requiring people to seek out legal counsel and pay court fees that can be prohibitive.

If the amendments, proposed by the office of Attorney General Anne Lopez (D), remain in place, the legislation would ultimately impact just a fraction of what HB 1595’s sponsor, Rep. David Tarnas (D), has said are “approximately 30,000 people” eligible for expungements under the original proposal.

“Instead of the bill in its current form, the Department proposes a pilot project whereby certain individuals who have been arrested solely for marijuana possession…and whose arrest resulted in a non-conviction disposition, have the arrest expunged via a state-initiated process,” the Lopez’s office said in submitted testimony. Without amendments, it continued, the department “reiterates its strong opposition to this bill.”

Limiting the process to a single county would “ensure a manageable number of cases for the Data Center to process using existing resources and would last for approximately 14 months,” the department said. “Results of the pilot project could then be used to evaluate the project’s effectiveness, utility, and efficiency, and to allow the Data Center to make more informed recommendations for future efforts.”

Karen O’Keefe, director of state policies for the advocacy group Marijuana Policy Project, said the panel’s “decision to limit the expungement bill to a one-county pilot project for a paltry three grams represents a severe blow to cannabis justice.”

“An economic life sentence is an outrageously disproportionate penalty for possessing a substance that most Hawaii residents—and the Hawai’i Senate—believe should be legal,” O’Keefe told Marijuana Moment after the vote. “Testimony at the House Judiciary Committee’s informational briefing made it clear Hawai’i can and should remove this stigma which derails so many lives.”

Prior to the changes, HB 1595 would have automated the state’s expungement process, mandating that the state attorney general’s office “issue, without petition and on the department’s own initiative, an expungement order annulling, canceling, and rescinding all criminal records, including records of arrest and any records of conviction” for possession of up to three grams of marijuana.

That would need to include records for civil violations, petty misdemeanor convictions, juvenile convictions, arrests, convictions and any pending charges.

The House-passed version also would require the Hawaii Criminal Justice Data Center to identify all cases eligible for expungement within 30 days of enactment and provide that information in biennial reports to the attorney general’s office, county prosecuting attorneys, county police departments and each state court.

Within 60 days of receiving those lists, the attorney general’s office would then need to issue expungement orders for those records. Then, within one year of getting those orders, the judiciary would facilitate the relief.

O’Keefe told the panel in testimony on Tuesday that the “state-initiated aspect of this bill is essential because few eligible individuals complete petition-based expungement.”

Other advocates said they were nevertheless pleased to see the legislation moved forward.

“While HB1595 was amended to be narrower in scope, we are proud that our work has led to the first ever state initiated expungement process in Hawai’i,” said Frank Stiefl, senior policy associate for the Last Prisoner Project. “This is a huge step forward that will encourage Gov. Green to amplify relief for those with cannabis records through his clemency powers, something the Hawai’i legislature has already urged him to do.”

Another advocate, Nikos Leverenz, of the Drug Policy Forum of Hawai’i and the Hawai’i Health and Harm Reduction Center, said in an email to Marijuana Moment that “if this pared-down measure is enacted and signed into law, and the attorney general subsequently acts in good faith to expeditiously implement it, then it is a positive development.”

“While expungement does take some level of effort,” he added, the figures from the attorney general’s office in recent months indicate that it already has confidence in its ability to identify those whose records could be expunged.”

Prior to the amendments being adopted at the Senate committee hearing, a speaker from ACLU Hawaii pointed to real-life impacts of cannabis criminalization that the bill was designed to address.

“There’s currently an individual on Kauai who has a teacher’s credential,” said Carrie Ann Shirota, the group’s policy director, “and because of a cannabis-related offense which is on his record, he can’t get a job within our [Department of Education], despite having the training.”

“We are dealing with a workforce crisis,” Shirota added.

Sen. Joy A. San Buenaventura (D) said she was “generally in agreement” with the plan limit the bill to a pilot program, although she proposed expanding the amended measure to include records related to drug paraphernalia.

“We haven’t really considered that at this point, so I don’t know I don’t think I can in good conscience say, ‘Yeah, let’s do it,’” replied Rhodes, but he said he would put the suggestion in the committee’s report on the bill.

Sen. Brenton Awa, the panel’s only Republican member, said he would have voted against the bill if not for the attorney general’s proposed amendments.

“I was gonna vote no, but with the pilot program just specifically for marijuana, I’ll vote yes,” he said.

Leverenz, for his part, said he’d like to see San Buenaventura’s paraphernalia suggestion incorporated into a later version of the bill.

“The proposed amendment floated by Sen. San Buenaventura to also include arrests and convictions for drug paraphernalia prior to decriminalization in 2017 was an intriguing idea,” he said, “and would be a good standalone measure or part of a bill to have Hawaii join Alaska and Minnesota in not having a drug paraphernalia law. Despite decriminalization, the law still operates as a gateway into criminal legal system involvement for those with behavioral health conditions.”

The full House of Representatives passed the bill last week—on the same day the Senate approved a bill to legalize and regulate adult-use marijuana in the state. A joint House committee hearing on the legalization bill is scheduled for Wednesday

As for that measure, Democratic lawmakers in Hawaii recently spoke to reporters about the measure, expressing optimism about Wednesday’s House joint committee hearing. But some worried that it could be harder to get the bill through the Finance Committee, where the bill would go next.

“The Finance Committee is dealing with a lot of different challenges this year,” said Rep. Scot Matayoshi (D). “The budget is very underwater, very in the red.”

Members of law enforcement have also come out in strong opposition to the legalization measure.

Last year the Senate passed a separate legalization bill that stalled the House, but advocates are hopeful this year’s proposal could get further. The governor said last month that legalization is a “big social issue that remains” to be addressed in the state, signaling that he’d likely sign a bill to end cannabis prohibition if lawmakers send him one.

This year’s current more-than-300-page bill was formally introduced in both chambers in January and is largely based on a legalization plan unveiled by Attorney General Lopez.

Advocates have complained that the AG-written bill wrongly frames marijuana as a law enforcement issue, though they say recent committee changes have been an improvement.

Democrats in control of Hawaii’s Senate said in January that cannabis legalization is one of their top priorities this legislative session, framing the reform as a means to boost the state’s economy.

State residents, for their part, seem to support the change. A Hawai’i Perspectives survey published last month by the Pacific Resource Partnership found 58 percent support for legalization.

In November, the AG’s office defended an earlier version of the legislation it put forward earlier that month after law enforcement officials criticized the proposed reform. David Day, a special assistant with the attorney general’s office, said at the time that the concerns were overblown and the legalization measure that’s been put forward deliberately took into account law enforcement perspectives.

Advocates struggled under former Democratic Gov. Dave Ige, who resisted legalization in part because he said he was reluctant to pass something that conflicts with federal law. But since Green took office, activists have felt more emboldened. Green said in 2022 that he’d sign a bill to legalize cannabis for adults and already had ideas about how tax revenue could be utilized.

Last April, the Hawaii legislature also approved a resolution calling on the governor to create a clemency program for people with prior marijuana convictions on their records.

As for other drug policy matters, lawmakers last month advanced a bill that would provide certain legal protections to patients engaging in psilocybin-assisted therapy with a medical professional’s approval. The measure would not legalize psilocybin itself but would instead create an affirmative legal defense for psilocybin use and possession in the case of doctor-approved use under the guidance of a trained facilitator.

The proposal has support from some state agencies, such as the Disability and Communications Access Board and governor’s Office of Wellness and Resilience (OWR), as well as a variety of reform advocates, including the Drug Policy Forum of Hawaii, the Hawaii Health and Harm Reduction Center and the Clarity Project.

Opponents include some medical groups, including the Hawaii Medical Association and Hawaii Academy of Family Physicians, which said there’s still too little information about the safety and efficacy of psilocybin.

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Photo courtesy of Philip Steffan.

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