NEW MEXICO (KRQE) – With new changes to the Criminal Record Expungement Act, some New Mexicans with marijuana-related arrest and conviction records will be eligible for record expungement. The new law requires that the New Mexico Department of Public Safety review records across the state to see who might be eligible; they told KRQE that there are about 150,000 New Mexicans over the last few decades who have been arrested for crimes that are now legal under the new cannabis law.

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Barron Jones, a policy strategist at the New Mexico affiliate of the American Civil Liberties Union (ACLU-NM), says expunging these records will be good for the state. “Expungement removes barriers,” Jones says. “We need that in New Mexico.”

Through ACLU-NM, Jones has worked with many New Mexicans who have marijuana possession records. To illustrate the housing and employment barriers that a possession charge can create, Jones gave KRQE an example of a middle-aged man that he met.

“He wanted to be a social worker because he believed that he could use his experience to help steer people away from making similar mistakes,” Jones says. But he was turned away from employment because of a felony possession conviction. Yet it’s not just felony possession that can be a barrier to employment.

“The overall amount that we had in the car was a little over an ounce,” recalls Chris Moffatt, a New Mexican that was busted carrying marijuana in Colorado in the late 90s. An officer charged Moffatt with a misdemeanor for possession under Colorado law. In the decades that followed, Moffatt’s misdemeanor followed him as he applied to jobs here in New Mexico.

Before New Mexico instituted ‘Ban the Box’ legislation preventing employers from asking about arrests or convictions, Moffatt ran into trouble on some applications. “For most of the boxes, it would just say: ‘Have you ever had a felony conviction?’ and I’d be like ‘oh shoot, it’s just a misdemeanor. I can uncheck that one,'” he says. But some potential employers asked if he had any convictions — felony or misdemeanor.

In some cases, employers have a zero-tolerance policy, he says. But even with employers willing to overlook a possession record, “you still have to sit down and kind of explain what you did,” Moffatt says. “The mistakes that you make when you’re 18, they definitely follow you around.”

In New Mexico, law enforcement made 1,358 arrests for marijuana possession in 2019, according to the most recently available data from the Federal Bureau of Investigation. The majority of those arrested were male. Among those, teens and young adults were among the most frequently arrested.

The most recent data, from 2019, reveals that male teens and young adults are arrested for marijuana possession more often than females and older New Mexicans. Data from the FBI Uniform Crime Reporting Program.

“Many individuals in New Mexico have been arrested or incarcerated for cannabis-related crimes,” says Emily Kaltenbach, the senior director at the Drug Policy Alliance, a group that works to reduce drug criminalization. The expanded expungement eligibility is a “huge step forward in New Mexico, and will have significant impacts on New Mexicans and their families,” she says. In particular, she points out that the changes to New Mexico’s expungement law address what she calls “unfair enforcement.”

“The people who are being arrested and incarcerated are disproportionately people of color and low income,” Kaltenbach explains. Indeed, nationwide arrest data from the FBI reveal that Black Americans and African Americans are arrested for marijuana possession at a disproportionately high rate. Data from 2019 shows that African Americans made up 13.4% of the US population, but accounted for 37% of marijuana possession arrests.

The 2019 data also reveals that African Americans are disproportionally arrested for marijuana possession in New Mexico. African Americans make up 2.6% of the state’s population, but accounted for 3.7% of marijuana possession arrests. Additionally, Native Americans are disproportionally arrested for possession. Native Americans represent 11% of New Mexico’s population but account for 17.6% of marijuana possession arrests.

Interactive Slider: New Mexico’s possession arrest demographics reveal that some minority populations are disproportionally arrested. National data show similar trends. Data from the FBI Uniform Crime Reporting Program.

While minorities are disproportionally arrested for marijuana possession, they aren’t the only people who will benefit from the new expungement law, says Jones from ACLU-NM. “This sort of legislation increases access to jobs for parents and will have a direct positive impact on their children and therefore the communities at large,” he explains. Additionally, the new law may be a sign that New Mexico is moving towards a more understanding and forgiving society.

“New Mexico is far behind the curve when it comes to passing proactive legislation like this,” Jones says. But now, “folks are starting to become a little bit more humane.” In the past, there was a “tough on crime” attitude, he explains. But simply arresting folks for marijuana possession doesn’t always solve the underlying issues — giving people access to opportunities such as jobs or education through expungement, on the other hand, can help, he says.

This shift in public opinion seems to follow a national trend. Alexander L. Burton, a senior research associate at the Ohio-based nonprofit Talbert House, co-authored a 2021 study of nationwide opinions on criminal redeemability.

“Public attitudes towards expungement are favorable,” he says. This means that “the public views criminality as a dynamic factor,” he adds. In other words, a one-time criminal isn’t necessarily always a criminal. People can change, or so public opinion suggests.

“The current state of the public towards expungement, and the criminal justice system more broadly, kind of reveals this idea of redeemability,” he says. And this is particularly true about crimes such as possession of illegal drugs. Just over 36% of the people surveyed in the study indicated that these crimes should be eligible for expungement if the offender proved they were crime-free for three years after the initial offense.

Public opinion may be shifting nationally and in New Mexico, but expungement comes at a cost. In the first three years — 2021 through 2023 — sorting through New Mexico’s records and applying the new law will cost the state an estimated half a million dollars, according to a report by the Legislative Finance Committee. Emily Kaltenbach from the Drug Policy Alliance says it’s worth it.

“It should not be an issue about how much it costs,” she says. Given the hardships criminal records have caused to New Mexican families, she explains, there’s no way to put a price on providing a clean slate.

Currently, state agencies are working to identify eligible candidates. The Corrections Department, for example, has identified an estimated 100 individuals who may be eligible for release, Eric Harrison, a spokesperson for the New Mexico Corrections Department, told KRQE. They have yet to release a list of names.

KRQE reached out to several people that represent local businesses; they don’t seem particularly concerned about how the new expungement law will affect hiring. “We’ve never been an industry that judges people,” says Carol Wight, the CEO of the New Mexico Restaurant Association. And given that New Mexico currently faces a labor shortage, “we’ll take just about anybody,” Wight adds.

Melissa Sanchez, the executive director of the Albuquerque Westside Business Association says she hasn’t heard anybody complain that the new law could lead to hiring unsafe employees. “Everyone’s just really desperate to hire help right now,” she says. “The expungement law may be beneficial in helping the workforce development.”

As for Chris Moffatt, his possession charge will continue to exist because it’s a Colorado record. But, he’s managed to get employment despite the challenges. He currently works with Fathers Building Futures, an Albuquerque-based nonprofit that helps previously incarcerated families integrate back into society.