There is a push this legislative session to improve the criminal record expungement process.
The idea is to have the state initiate the expungement process instead of the current situation where people must submit an application and pay a fee of $35 for the first expungement, and $50 for subsequent requests.
The case for cannabis
The possession of under three grams of cannabis was decriminalized in Hawaiʻi almost five years ago. But the state is still grappling with how to expunge those records.
The problem, according to the attorney general’s office, is that the offense would be categorized under one law that covers several different drugs — HRS712-1249, promoting a drug in the third degree.
The information on what type of drug, and how much of that drug people were in possession of, was optional in the record. So the office has to refer back to the law enforcement agency or the prosecutor’s office that brought the charges.
“It's not reliable because that information is optional to provide to us,” said Phillip Hidgon, administrator at the Hawai'i Criminal Justice Data Center, during an informational briefing with lawmakers earlier this month.
“So to know exactly what the drug was and how much the quantity was, a lot of times we would have to go to the law enforcement agency and actually ask for those reports from the prosecutor's office because the charges may be amended.”
American Civil Liberties Union of Hawai‘i Policy Director Carrie Ann Shirota said if at this point in time, the state is unable to prove with evidence that people had over 3 grams of marijuana, they should be qualified for record expungement.
“There should be a presumption to get the records clear because of the long-term impact of a criminal record,” she said.
“[It] stays with an individual for a lifetime, regardless of the passage of time, regardless of the fact that they have paid their debt to society, they may still face collateral consequences in terms of access to jobs, housing, and other opportunities.”
Conviction and expungement
Under HRS712-1249, there are 52,600 arrest and conviction records potentially eligible for expungement.
That accounts for 36,000 people. Of those records, only a fifth of those resulted in an actual conviction.
Arrests that result in non-convictions are also already eligible for expungement.
However, Hawai‘i Innocence Project Associate Director Jennifer Brown said people often don’t find out that they still have these records until it becomes a problem.
“You may not think about how a conviction or just even an arrest can impact your life in the future until something bad happens,” Brown said.
“Where you get notification that you didn't pass your background check because we see this on your record, or they apply for certain types of housing, or a loan,” she said.
Frank Stiefel, a senior policy associate for the Last Prisoner Project, said that this could possibly be impacting Maui wildfire victims because criminal records could impact their ability to receive federal assistance.
“We're talking about individuals that don't pose any threat to public safety and clearing their records is allowing them to find jobs, apply for housing, apply for public assistance,” he said.
That’s why advocates are pushing for a state-initiated process.
The attorney general’s office has up to 120 days to process the application for expungement, but on average it takes about 36 days.
The department processes 1,440 applications a year and approves about 1,080 on average.
However, along with expunging a record, a person then has to go to the state courts to ask for the records to be sealed which is another process.
A law signed last year aimed to streamline this process, but Higdon said the attorney general is unable to give people's expungement information to the judiciary and that it needs to be changed statutorily.
Brown explained that people navigating through the expungement process are not entitled to a public defender, meaning that people who want legal representation may have to pay for a lawyer.
The state judiciary website advises people to have a lawyer help with the sealing process because it can impact many aspects of life. It says that people can possibly seek help from the criminal lawyer they worked with originally, their public defender or other counsel.
Bills this session
There are two bills going through the state Legislature addressing the expungement process.
One would have created a state-initiated process across the islands to expunge all records for offenses of HRS712-1249.
However, during a Tuesday Senate Judiciary Committee meeting, it was amended to a much more narrow scope. The measure would now start a 2025 pilot program in Hawaiʻi County to have a state-initiated process to expunge criminal marijuana possession records that did not result in a conviction received prior to 2020 when the decriminalization law went into effect.
Stiefl referenced Missouri’s state-initiated expungement process, where the state was able to expunge 100,000 cannabis records. He added that Hawaiʻi may be in a good situation to implement the measure because it already has the data available.
“I would say all the data and information is there. It's just simply passing this bill to provide the (attorney general’s) office with the statutory authority to trigger that expungement process for those individuals that are already eligible,” Stiefl said.
Rep. David Tarnas, chair of the House Judiciary & Hawaiian Affairs Committee told the attorney general’s office that if they would need more funding to implement the stat-initiated program, lawmakers would try to find the resources for them.
Another measure awaiting a hearing in the House would create a task force to develop an even more robust state-initiated record-clearing program.
