Approach changes in attempt to expunge low-level marijuana cases
Cleveland CLEVELAND —
Mayor Justin Bibb’s rollout of a well-intentioned plan to wipe clean thousands of low-level marijuana cases was legally messy and now requires a new approach, due to Ohio laws that may not grant Cleveland the ability to initiate the sealing of criminal records without the defendants’ involvement.
With great fanfare, Bibb announced April 6 that his administration was filing motions to expunge 4,077 minor misdemeanor convictions and charges filed in Cleveland Municipal Court since 2017. The splashy announcement entailed Bibb, Law Director Mark Griffin, City Prosecutor Aqueelah Jordan and City Council President Blaine Griffin toting boxes of legal paperwork through the downtown courthouse before hand-delivering their motions to the clerk of court’s office.
But the court’s administrative judge, Michelle Earley, tells The Plain Dealer that individuals are the only ones who can initiate the sealing or expungement of their cases, and that Ohio law does not allow the city to initiate that process.
In the weeks after Bibb’s announcement, city officials tried to find a solution to that roadblock. Earley and Griffin asked Cuyahoga County Public Defender Cullen Sweeney whether his office, on behalf of those involved in the 4,077 cases, could initiate expungements en masse, Sweeney said. But the Ohio Supreme Court’s Board of Professional Conduct, in an April 27 letter, told Sweeney that such a move could run afoul of professional conduct rules because attorneys are obligated to follow their clients’ wishes. That would be impossible if clients don’t even know they’re being represented, Sweeney said.
Despite the original plan going awry, Bibb and other city officials now believe they’ve found a way forward that would still give people a fresh start and help reduce the negative impacts that marijuana charges often have on job prospects and in other areas of life.
To get there, the city prosecutor intended on Friday to file new, superseding motions that would seek to use different legal mechanisms to wipe records clean: vacating convictions and dismissing charges (as opposed to sealing or expunging them). Earley said the new approach comports with Ohio law. It will be up to municipal court judges to decide whether to grant those requests in the coming months.
For its part, the Bibb administration doesn’t see its initial rollout as premised on faulty legal logic. Griffin framed it more as a “testing” of what state law allows, Bibb spokeswoman Marie Zickefoose said. The city’s initial attempt at sealing records was intended as a “creative approach, to act creatively and aggressively to pursue justice for people,” Zickefoose
said.
It bears noting that Ohio law only states that the individual charged may seek to seal their own record; it doesn’t appear to explicitly prohibit prosecutors from initiating the sealing of a record. “There is some uncertainty there. But just to make it clear, we’re just going to do the dismiss and
vacate,” Griffin said.
While similar, there are some key differences between sealing a record and vacating a conviction. Sealing a record means the public can no longer see that a criminal case occurred. Vacating a conviction means it’s as if the case never happened in the first place -- but it doesn’t eliminate all evidence of it, so prospective employers could still see that someone was arrested, Earley said.
“The arrest technically would still be there. That’s something that obviously is a concern, and I think that’s why the city attempted to go the route that they did,” Earley said.
Officials believe they have a work-around for that issue. In addition to pursuing the vacating of convictions, Earley said the city intends to send notices to the people affected to let them know they can also seek a sealing of their arrest. The notice will point them to the Cleveland Municipal Court website, which will prominently feature an online form that should allow people to easily request a seal, she said.
Another key difference between sealing a record and vacating a conviction comes down to money. Expunging or sealing a record wouldn’t require the city to repay individuals for court costs and fines. Vacating convictions would, although there is disagreement about whether the city would have to automatically issue refunds.
Griffin said the city believes such money should be returned only in cases where an individual requests a refund.
Earley disagrees.
“If a case is vacated, the court has no reason to hold the funds. Even if the individual doesn’t request the funds, they should go into an ‘unclaimed funds’ [account],” she said.
While court costs and fines for such convictions could total up to roughly $300 per case, many people don’t pay their fines and court costs, which significantly reduces the potential total of what the city may have to refund, Griffin said.
Earley did not yet have an estimate of how much money that could be, though she thought it would be well below $1 million. Griffin said his estimates put the figure at around $140,000.
“If [returning the money] is what the law requires, we should follow the law,” Griffin said.
City Council President Blaine Griffin said City Council would have to determine how to cover the cost of the refunds, if the court decides they are appropriate.
Asked whether the municipal court’s budget would bear the brunt of any refunds, Griffin said council “won’t try to stick somebody with the bill on this.”
“I still believe it was worth it to vacate those decisions. I still believe that that’s the right thing to do,” he said.
Griffin was the chief sponsor behind a 2020 Cleveland law change that eliminated all fines, court costs and jail time for possessing small amounts of marijuana. It was a move intended to address racial inequities, as Black individuals disproportionately face low-level possession charges. Given that 2020 law change, Griffin has said the city’s current plan to wipe marijuana records clean is a “logical next step.”