Clean slates promised under marijuana law prove complicated

When New York legalized recreational marijuana two years ago, it was meant to tear up the path to prison that being convicted of possession had long paved.

But even as legalization took effect and New Yorkers could smoke with impunity, Frederick Volkman was sent to a maximum- security prison after violating the terms of his probation on a 2019 felony marijuana charge. Locked up with violent criminals, he did his best to avoid confrontations.

“I saw people out in the yard getting cut — there was a fight almost every day,” Volkman, 26, recalled in a phone interview from prison.

Thanks to the 2021 law, Volkman, who is to be released Monday from a bootcampstyle lockup, is one of the few remaining prisoners in New York incarcerated solely because of marijuana charges, officials said.

He will return to a world where marijuana seems to be everywhere, sold from storefronts and vending trucks, its aroma wafting on the street and from moving cars. But as many New Yorkers light up freely, complications created by the law linger, including thousands of uncleared felony charges that recall the state’s earlier, draconian approach to prosecution.

Legalization offered offenders a clean slate by wiping convictions from their records, a crucial step toward turning their lives around by making it easier to apply for a job or loan, rent an apartment or obtain a professional license. Expungement was a pillar of the law’s promise to reverse the consequences of the war on drugs.

The 2021 law expunged 107,633 convictions, and a 2019 law that decriminalized small amounts of marijuana cleared 202,189 more, state justice officials said.

Those convictions were largely for lower- level offenses. The situation is more fraught for people such as Volkman who have felony convictions for large quantities of cannabis.

The vast majority of the nearly 9,000 felony marijuana convictions remain on offenders’ records long after they have served their sentences. In addition, scores of minor marijuana convictions that accompanied more serious crimes cannot be expunged automatically despite the law requiring it.

Most felons have not even sought to clear their charges — some because they did not know the new law allowed it, others because they thought it would happen automatically and still others because of the arduous filing process, advocates say.

Furthermore, the omission of a single digit in the legalization legislation — the Roman numeral I — has precluded felons from filing a straightforward form to receive a conviction reduction. The mistake remains uncorrected.

“It’s literally a typo,” Emma Goodman, a Legal Aid Society staff attorney, said.

The upshot is that instead of filing the form, felons seeking conviction reductions must have a legal motion drafted and submitted in the county court where they were convicted. The district attorney’s office that prosecuted the original crime can weigh in before the motion goes before the judge who imposed the conviction.

Such mot ions have largely sailed through in more liberal counties, such as the five boroughs of New York City. But elsewhere, some are being opposed, a development that advocates described as troubling.

“There are still significant contingents in parts of the state that are opposed to the law and do not want it implemented,” said Goodman, who specializes in getting criminal records expunged.

A judge in Dutchess County, north of New York City, rejected one man’s motion to clear his record of a felony marijuana conviction. In a move that will most likely set precedent for similar challenges, the man is appealing the ruling.

A coalition of public defenders and advocates has been urging legislators to have the typo in the law amended, Goodman of Legal Aid said, but has been told that doing so would require introducing a corrective bill.

As for Volkman, who state records indicate is one of just two remaining marijuana- only offenders in prison, he filed a motion after the 2021 law passed to have his conviction vacated. A judge denied it.

“Marijuana is not a very dangerous drug — it’s not something that people should be badly punished for, especially with everything going on in New York and legalization,” he said.

He was arrested in 2019 at 22 with 7 pounds of marijuana and $ 65,000 at his home in Glens Falls. He served five months but failed a drug test while on probation. Volkman said he hoped to eventually work in the legal cannabis industry and hoped that his drug charge would not hobble him professionally.