ACLU of Missouri backs marijuana legalization, expungement campaign; critics slam the endorsement

UPDATE: This version of the story contains updates and rebuttables from Legal Missouri 2022.

The ACLU of Missouri is the latest legal organization to endorse Legal Missouri 2022 (LM22), the citizens’ ballot initiative that ties the legalization of adult-use marijuana to an automatic expungement provision for most prior, non-violent marijuana offenses.

“To combat the racial disparities rampant in marijuana-related arrests, our organization remains committed to opposing laws which criminalize adult use of marijuana and supporting automatic  expungement of marijuana-related offenses,” said Luz María Henríquez, Executive Director of the ACLU of Missouri.

A 2020 ACLU report found that Black Missourians are 2.6 times more likely than whites in the state to be arrested for marijuana possession —despite comparable national marijuana usage rates. In some Missouri counties, the disparity is a much as 10-to-1.

In 2018, marijuana possession accounted for more than 50 percent of all drug arrests in Missouri. Of the nearly 21,000 marijuana arrests here that year, the vast majority were for simple possession of very small amounts.

However, a small coalition of organizations and a few members of law enforcement that oppose LM22 slammed the ACLU’s endorsement of the ballot initiative campaign, citing what they claim is the disparate and inequitable approach in the proposal to expungement of marijuana offenses, the proposed creation of Constitutional marijuana law enforcement and possession offenses, and the inequitable approach to licensing and market access.

“The LM22 initiative petition claims to be about expungement, but actually would create a Constitutional mandate that marijuana offenders serving time for offenses involving more than 3 pounds serve the entirety of their sentences before being eligible for relief,” said Christina Thompson, of Show Me Canna Freedom. “By contrast, Missouri House Bill 2704 proposed by MO St. Rep. Ron Hicks (R-St. Charles) would release all non-violent marijuana offenders and provide an immediate pathway to expungement regardless of the quantity involved.”

Legal Missouri 2022, says this is simply not true, there is no mandate. Under automatic expungement, Missourians would not have to petition the court to approve expungement requests, a process that adds time and expense to the procedure.

According to the University of Missouri-Kansas City School of Law, only 125 Missourians (among the estimated 1.3 million to 1.8 million with criminal records) were able to expunge their records in 2019. Calling the expungement process “complex and expensive, these past convictions become “the punishment that never ends,” UMKC Law notes.

Moreover, all non-violent marijuana offenses except those involving driving under the influence and sales to minors will be expunged automatically. The more serious felonies do not become eligible for expungement until completion of the sentence, but this in no way creates a provision that would prevent the General Assembly from passing a bill to expunge those offenses more quickly, if they are so inclined, as our language explicitly says that it shall not prevent people from availing themselves of other expungement opportunities in the law.

“Despite having fully paid their debt to society, they find that the impact of their record lingers, blocking educational, employment, and housing opportunities. The persistence of criminal records also takes a heavy toll on an individual’s health.”

The proposed constitutional amendment would allow Missourians ages 21 and older to possess, consume, purchase, and cultivate marijuana. A 6% retail sales tax would generate estimated annual revenue of at least $40.8 million (and likely much higher) and additional local government revenues of at least $13.8 million, a state fiscal analysis projects.

That money, in turn, would cover program costs including expungement, with remaining funds reserved for veterans’ services, drug addiction treatment and the state’s severely underfunded public defender system.

The automatic expungement provision doesn’t apply to violent offenders or those whose offenses involved distribution to a minor or operating a motor vehicle while under the influence of marijuana.

The LegalMo22 proposal, if passed, would make Missouri the first state in nation where voters approved automatic expungement for past cannabis convictions. Among the 19 states to have legalized adult use, just seven have automatic expungement.

Further, Missourians would not have to petition the court to approve expungement requests, a process that adds time and expense to the procedure.

One critic of the legislation says it “…creates a racist and inequitable approach to licensing and market access. There is no reason why Missouri entrepreneurs, and particularly in minority communities shouldn’t have full access to commercial licensing opportunities. The LM22 “microlicense” approach is a second-class, Jim Crow proposal. By contrast, HB 2704 creates full opportunities for ownership and market access for all Missourians,” said Tim Gilio of the Missouri Marijuana Legalization Movement.

There are quite of few organizations to endorse the ballot initiative, including the Missouri Association of Criminal Defense Lawyers, Empower Missouri, Reale Justice Network, Missouri NORML, and the St. Louis City, St. Louis County and St. Charles County chapters of the NAACP.

“The growing support for our initiative by the ACLU and legal organizations is testament to the central role of long-overdue criminal justice reform in our campaign,” said John Payne, Legal Missouri 2022 campaign manager.

“Automatic expungement will give tens of thousands of state residents a clean slate,” Payne added. “It’s a matter of basic fairness: the legalization of marijuana for adult use should also relieve otherwise law-abiding Missourians of the consequences of activity that is no longer considered criminal.”

Still opponents of the initiative say it will do more harm than good. “The LM22 campaign creates new Constitutional law enforcement mandate to stop and cite people smoking marijuana in public and further creates new Constitutional marijuana possession penalties,” said New Haven, Missouri police chief Chris Hammann. “This proposal would burden law enforcement with unnecessary work and and continue the inequitable enforcement practices of the past.”

In response to the critics, Legal Missouri 2022, again says there is no mandate. They say they have the broad, robust support of a multitude of criminal justice reform organizations that recognize their automatic expungement provisions as among the most forward-thinking in the country. When it comes to the automatic expungement of nonviolent marijuana convictions, we trust that Missouri voters will side with the ACLU, NORML, Empower Missouri, the NAACP and others over disgraced lobbyist Eapen Thampy.”

Thampy, according to The Daily Beast in 2019, was accused of being part of a network that distributed more than 2,200 pounds of marijuana over three years. Thampy plead guilty to a federal crime in 2020.

Missouri State Representative Tony Lovasco (R-St. Charles) said, “It’s unfortunate that the ALCU would endorse a measure that adds unnecessary and draconian drug crimes to our state Constitution, in direct conflict with their stated goals of criminal justice reform. The fact that this comes while the Missouri General Assembly is considering legislation to properly legalize cannabis without such unnecessary inclusions is all the more disappointing. I implore the ACLU to reconsider its position and instead offer support for Missouri House Bill 2704 filed by my colleague Rep. Ron Hicks.”

Missouri House Bill 2704 though shares many similarities with legislation in Oklahoma that has caused fits for the state.

An unfettered, “open” marijuana market in Oklahoma quickly captured the interest and participation of organized crime and foreign drug cartels, creating a law enforcement crisis in our neighboring state that has required federal intervention.

Legal Missouri 2022 asks “Do we really want Missouri to go even further than Oklahoma – and the rest of the country – as the only state to not set any limits on personal possession of marijuana?”

“Combine unlimited licenses with zero possession limits and an apparent absence of uniform testing standards — as this legislation proposes, going even further than our neighbors to the southwest — and Missouri will face a significant crime increase of our own.”

After an early December kickoff, campaign volunteers continue to collect voter signatures across the state, Payne said, with outreach efforts escalating ahead of an early May deadline to submit more than 170,000 valid signatures to qualify for the 2022 ballot.

The Legal Missouri 2022 initiative also seeks to broaden participation in the legal cannabis industry by small business owners and among historically disadvantaged populations, including those with limited capital, residents of high-poverty communities, service-disabled veterans and those previously convicted of non-violent marijuana offenses, among others.

A new category of cannabis licenses reserved for small businesses would, over time, add a minimum of 144 licensed facilities to the existing 378 licensed and certified cannabis businesses in the state: 18 in each of the state’s eight congressional districts, with at least six per district operating as dispensaries and the remainder designated as wholesale facilities.

This new category of licenses allows operators to both cultivate the plant and manufacture cannabis products. The new license holders would be selected at random, by lottery.

A copy of the Legal Missouri 2022 petition can be found here.

Additional Petition Highlights:

• Allows Missourians 21 years and older to possess, purchase, consume and cultivate marijuana.
• Levies state taxes of 6 percent on retail sales of marijuana. New revenue funds regulatory program and costs to process automatic expungements, with the surplus split equally among veterans’ services, drug addiction treatment, and Missouri’s underfunded public defender system.
• Allows local governments to assess local sales taxes of up to 3 percent.
•  Allows local communities to opt out of adult use retail marijuana sales through a vote of the people.
•  Strengthens Missouri’s medical marijuana program. The petition extends the amount of time that medical marijuana patient and caregiver ID cards are valid from one to three years while keeping that cost low ($25). And the current $100 fee for Missourians who choose to grow medical marijuana at home will be reduced by half, with the expiration period also extended from one to three years.
• Provides employment discrimination protection for medical patients, preventing them from being denied employment or being disciplined or fired for off-the-job medical marijuana use.
• Adds nurse practitioners to the category of healthcare professionals who can issue medical cannabis recommendations to patients.