Pot Advocates See Connecticut Ruling as a Way Forward for New York

A landmark Connecticut ruling has Nick Menditto in the clear.
A landmark Connecticut ruling has Nick Menditto in the clear.

When Nick Menditto was arrested for pot possession at a Connecticut rest stop, the timing could not have been worse. It was March 2011, and he was a few weeks shy of completing his probation for two other marijuana possession charges, which meant any new arrest would have serious consequences. But there was more to worry about — he was also busted just as the Constitution State seemed primed to decriminalize possession of small amounts of pot. And less than three months after his arrest, in June of that year, the legislature did just that.

No one would mistake Menditto for a drug kingpin. His 2011 arrest came following the discovery of what police characterized as an "unmeasurable" amount of marijuana, less than 0.04 ounces, according to court papers. His two previous arrests had been for similarly non-Scarface-level quantities. Combined, his stash in both those cases was less than 0.16 ounces, or about four joints' worth of pot.

Still, the law is the law, and on the third arrest, police in Rockville, a sleepy village northeast of Hartford, were not feeling generous. Menditto was arrested, which constituted a violation of his probation. All of a sudden he was looking at possible jail time.

"It was a couple of flakes in a jar," Menditto says. Nevertheless, he was facing eighteen months in jail for violating his probation. Menditto challenged the charge on the basis of Connecticut's unusual "erasure" law, which allows for the retroactive scrubbing of past convictions when the law in question has been repealed. But the trial court found that Connecticut's decision to reclassify marijuana possession as a civil violation was not "decriminalization" under the meaning of the erasure law, just a reclassification of the offense. An appeals court found the same.

But the case ultimately made it all the way to the Connecticut Supreme Court, and on March 24, Menditto achieved a remarkable victory when that body reversed the lower court's ruling. The changes to Connecticut's law in 2011 did constitute decriminalization, the Supreme Court held. That meant the 31-year-old was eligible to have his previous convictions voided. The ruling set off a chain reaction of expunction: With no underlying convictions, the probation that came with them was also void; Menditto's 2011 arrest, therefore, couldn't have violated a probation order that rightfully shouldn't apply. It was like the whole thing never happened.

"His case was really unusual, and it was actually the best case for this law," not least because of the timing, says Aaron Romano, the attorney who handled Menditto's case in Connecticut.

The ruling will have wide-reaching effects in Connecticut, opening the door for tens of thousands of people to have damaging convictions erased from their records. Decided in a state court, the ruling will have no effect beyond Connecticut's borders. But the problem it addresses — the millions of Americans who are carrying convictions from a failed, decades-long prohibition quagmire — is one that many other jurisdictions are starting to confront.

"Getting rid of these convictions will be very, very important to people," Romano says. Convictions on even the smallest of marijuana-related charges can result in life-altering consequences, Romano notes, like job loss, termination of public benefits, deportation, and denial of student loans.

"In five years, I think [marijuana] is going to be legal across the board," Romano says. "And each state will have to create a mechanism [to address past convictions.]"

As Gabriel Sayegh, director of the New York office of the Drug Policy Alliance, explains, what happened in Connecticut is going to need to happen in New York, too.

"With 40 years of drug-war excess, we not only need to reform the laws and end the war, but we need to account for the harms that this war has caused," says Sayegh. There are more marijuana arrests and citations in New York than any other state, he adds. And an overwhelming majority of marijuana-related criminal charges, at least 80 percent, are leveled against young black and Latino men, despite evidence showing that white men in the same age range use the drug at the same or even higher rates.

"This type of expungement, and clearing of records, is clearly a step [in the right] direction. And it should become more widespread," Sayegh says. "We really do need to account for the ways that these laws have harmed communities — specifically low-income communities and communities of color — over the last 40 years."

Sayegh's group has been pleased with some of the policy changes under Mayor Bill de Blasio, who has instructed the NYPD not to make arrests in marijuana possession cases. And now that there's a growing acknowledgement that the approach to marijuana has to change, he's optimistic about the chances for passage of New York's long-stalled Equity and Fairness Act, a reform bill designed to address a range of issues with marijuana enforcement in the state.

The bill has been bouncing around Albany since 2011, never having managed to make it out of the Committee on Codes in the Republican-controlled senate. Its current version was introduced in March, offered up simultaneously in the assembly and senate by Harlem assemblyman Robert Rodriguez and Lower Manhattan senator Daniel Squadron, who are both Democrats.

The bill calls for a host of reform measures, but a new provision — which first appeared in last year's failed iteration — would allow for old marijuana convictions to be "vacated," or legally voided. The effects of the law would differ somewhat from the ruling in Connecticut, as New York law doesn't allow for outright erasure. So, for example, records of a conviction would always be on file with the court. But for the purposes of things like job applications, no one would be the wiser.

The Equity and Fairness Act builds on a decriminalization law that was passed in New York way back in 1977, which did little to stem arrests because of what turned out to be a gaping loophole. While the law eliminated criminal penalties for private possession, marijuana in public view could still lead to criminal charges. The way that exception played out, however, meant that almost any possession could be considered to be in public view. If an officer ordered a suspect to empty his or her pockets, for example, thereby bringing marijuana into public view, that could be considered an arrestable offense. It's clearly not what the law was designed to allow, and the Equity and Fairness Act would eliminate the disparity between public and private possession; both would be considered a noncriminal violation, much like a speeding ticket.

Other aspects of the law should make reformers happy, too. For example, the bill would eliminate an odd provision in the New York State criminal code that treats the sharing of marijuana — essentially, passing a joint to your buddy — as the equivalent of drug dealing. And it would require any changes to the state's penal code to include a racial and ethnic impact statement, examining the likely effects of new criminal laws on communities of color.

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On the wonkier end, the bill would also allow judges to more broadly use the legal instrument known as "adjournment in contemplation of dismissal," which suspends a charge for a period of time, after which, contingent on good behavior, it can be dismissed altogether. The bill would make it possible for judges to invoke the so-called ACDs multiple times with repeat offenders. Currently, defendants can only play that kind of "get out of jail free card" one time.

Squadron, who is particularly proud of the racial impact statement provision in the bill, says he's seeing more and more awareness within the legislature about the problems with marijuana laws, and he's optimistic about the bill's future. "We're continuing to push it, and support for the idea that we have unfair laws and enforcement around marijuana just continues to increase," Squadron says.

But Sayegh says the measure isn't without imperfection. Having a conviction vacated will still require going to court, or at least filing some paperwork. The process was intended to be as simple as possible, the kind of thing that can be done by mail. It's an important consideration, Sayegh says, because of the sheer volume of marijuana convictions handed down in past decades. According to the American Civil Liberties Union, marijuana arrests account for more than 50 percent of all arrests nationally. So streamlining the process is important to keep from further gumming up an already overburdened court system.

Arguably, the process would be better if it was automatic — a blanket "amnesty" applicable to all convictions. But Sayegh says the Equity and Fairness Act would make a huge difference, both for enforcement in the future and for those with convictions in their pasts.

"It's the closest we can come to [the Connecticut ruling] in New York at this time, but it would be a big, big deal," Sayegh says.

The focus of legislators is often on the most immediate problems, Squadron admits, and as the approach to marijuana becomes more rational — with fewer arrests across the board — the ancillary consequences might get less attention. "Sometimes, as you see improvement in the real world," Squadron says, "focus in Albany begins to wane." But maybe this situation is the exception.


Jon Campbell is a staff writer for the

Voice

, covering criminal justice,

legal issues

, and the occasional

mutant park squirrel

. Tip him at

jcampbell@villagevoice.com

and follow him on Twitter at

@j0ncampbell

.


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