March 31, 2021

Legislature sends expungement bill to governor’s desk

The seal of the state of New Mexico in the House

A bill to expunge cannabis-related criminal offenses that would no longer be illegal if cannabis is legalized is headed to the governor’s desk.

The effort began with 11 amendments in the Senate Judiciary Committee on Tuesday, which the committee later adopted as a committee substitute, and another on the Senate floor, a speedy move through the special legislative session.

The Senate passed the bill on a 23-13 vote after about one hour of discussion early Wednesday afternoon. The House later passed the bill on a 41-28 vote after over an hour and a half of debate.

The bill aims to automatically expunge the criminal offenses, under the state’s expungement law, that would no longer be illegal under cannabis legalization which was being debated by the Senate. During the regular legislative session, expungement was part of the cannabis legalization bill that failed to pass the Legislature.

The bill would remove the public records of such arrests, or redact the portions related to cannabis if the person convicted had other charges that would not be impacted by this law.

It does not give any reparations or repayment of any fines associated with the arrests. 

If someone were in jail or prison for only cannabis offenses they could be released.

Democrats in the Senate called it a social justice bill aimed at correcting problems with cannabis laws in the past.

“The essential element here is that we’re trying to undo the worst consequences of what’s been called the ‘War on Drugs,’” State Sen. Jerry Ortiz y Pino, D-Albuquerque, said of the bill.

Republicans voted against the bill and argued that it would be confusing for courts.

Republicans also criticized the number of changes made to the bill during the special session and said that it showed the bill was not ready.

“Whenever we have special sessions, the bills need to be ready to go and this is amendment number 12,” Sen. Cliff Pirtle, R-Roswell, said.

No Republicans voted in favor of the bill in the Senate.

After passing the Senate, it was sent to the House.

After a relatively brief House Judiciary Committee hearing, which did not include any further changes to the legislation, the committee sent the legislation to the floor on an 8-1 vote.

Republican T. Ryan Lane of Aztec asked if the state would have any possible legal exposure with the state’s changes to the New Mexico Civil Rights Act, which—if signed—would end the defense of qualified immunity for civil suits against public entities.

Romero said that the pending bill passed in the regular session would require people to attempt to explore all other legal remedies first, which in this case would be the process set forth for expungement.

Rep. Greg Nibert, R-Roswell, said he was worried about employers who would no longer be able to use public information to confirm if a potential employee was convicted of cannabis use, and said that was why he would vote against the bill.

Rep. Cathrynn Brown, R-Carlsbad, brought up a novel argument against expungement.

“There are some folks who would actually rather be in jail and would not want their records expunged,” she said.

Romero remarked that the expungement was designed to be automatic.