When Missourians voted to legalize recreational marijuana in November, they also voted to expunge the criminal records of anyone who had previously been convicted for offenses that are no longer illegal. That directive has created a monumental task for local courts across the state, particularly for the clerical staff who now must review decades of records.

Expunging a criminal record means that the record is completely hidden from the public and that related documents are also removed from all law enforcement databases. Last year’s recreational marijuana amendment directed Missouri courts to begin automatically expunging the records of anyone who has completed a prison sentence or is currently on probation for marijuana offenses that are no longer illegal.

The amendment gives courts one year to carry out that mandate. It’s a race against time to review thousands of cases to find the ones that qualify for expungement, said  Tim Beard, the head clerk of the Warren County Circuit Court.

Beard estimates that he has spent at least four hours per day for two months reviewing drug possession cases in the court’s computer records, sorting out which ones qualify for expungement. Beard said he is doing the reviews mostly on his own because his staff is fully occupied with their normal duties that keep the court running.

An initial database search returned over 5,000 cases for review, Beard said. For some cases, it’s simple to determine whether they qualify for expungement; but many others require manual review of the original court documents because marijuana cases are often mixed in with all the other drug-related cases. And on top of that, any case that involves multiple kinds of crime can’t just be hidden entirely, so any qualifying marijuana-related information has to be manually redacted from all documents.

“It’s an enormous job,” Beard commented. “If everything is pretty easy and takes (an average) 10 minutes for each one, it would be 833 hours. It would be about 21 weeks at 40 hours per week, of just doing expungements. ... And I think that’s a very low figure.”

All of that, Beard said, is still the easier part of the expungement mandate. After all of the relevant digital records are reviewed, the courthouse staff needs to begin assessing all of the pre-2005 records that are stored only in paper copies at the courthouse. There’s no computer system to search through these records, so clerks will have to review every single case file, going back decades, by hand.

“We don’t know whether we’re going to need additional overtime, Saturdays, by the time all is said and done,” Beard commented. “I don’t have a plan for that side of it yet.”

The role of judges

Once Beard or other court clerks identify a criminal case that qualifies for expungement, that case is sent to a Warren County judge for approval. If the judge approves, the records get hidden from the court’s public database, and an order is sent to local and state law enforcement agencies to remove all their records as well.

Judges also play a direct role in cases involving someone who is currently incarcerated for a marijuana offense. Those cases aren’t eligible for automatic expungement; the convicted person has to actively petition a judge to have their conviction overturned. The judge then reviews the case to determine whether that person qualifies for release, based on standards set by the 2022 marijuana amendment.

In Warren, Montgomery and Audrain counties, all such petitions will be heard by Presiding Judge Jason Lamb. He said the precise procedure for handling those petitions, and the time involved in doing so, are developing on an ongoing basis.

“This is obviously a new area of the law. ... We’re just going to have to see how things develop,” Lamb commented. “We’ll do what is required, and do it as expeditiously as we can, given the resources that we have.”

Lamb said the question of how to handle the vast influx of extra work for court clerks is currently being negotiated in Jefferson City. He said judicial branch representatives are pushing for a larger funding allocation from the Missouri Legislature, in order to pay for extra staff hours to process all of the expungements and petitions within the one-year deadline.

“With having that overtime, the extra appropriations request at the state level certainly makes sense,” Lamb said. “As far as court docket management, (marijuana-related petitions) will go on a docket just as any other case, and will get the appropriate time that’s needed on a case-by-case basis.”

According to data kept by the office of the Missouri Supreme Court, 378 marijuana-related cases from Warren County have been expunged as of last Friday. The Warren County Court has so far registered one petition for release of an incarcerated person, although information from the Supreme Court notes that petitions only appear in state records after the petitions have been received and processed by local clerks.