In August, the New Orleans City Council passed legislation aiming to effectively decriminalize marijuana possession in the city. In addition, they passed a blanket pardon that council members said would apply to around 10,000 old simple possession of marijuana convictions since 2010 — a measure intended to redress the racial disparities in marijuna enforcement and remove any lasting impacts of the convictions.
City Councilmember Helena Moreno, who sponsored the pardon motion, called the move “historic.”
But months after the law was supposed to go into effect on Sept. 15, none of the retroactive pardons have been entered into the New Orleans Municipal Court system, and therefore have not had any impact on people’s records. Convictions during that time period, along with all associated fines, fees, and warrants, are still showing up — with no mention of a pardon.
“When the City Council announced that, you know, with the passage of the ordinance 10,000 records were pardoned — that’s just not the reality at this point, because no one’s actually done anything proactive to accomplish that,” said Sarah Whittington, an attorney with the Justice Accountability Center. “Just signing a piece of paper wasn’t sufficient.”
Whittington said she had a client two weeks ago who had a simple possession of marijuana conviction on their record, along with outstanding fees, that should have been pardoned and waived by the council’s ordinance. But instead, when he went to court, it still showed up as a conviction. Because she was aware of the pardon ordinance, Whittington said that she was able to bring it up with the prosecuting assistant city attorney and the judge, who agreed that the guilty plea would be withdrawn, the fees waived, and the record sealed.
But most people who go before a judge would not necessarily know about the pardons, and likely wouldn’t have the wherewithal to petition the judge or the City Attorney’s Office for the outcome that her client got, she said.
“No layperson would be able to come up with the type of process that we kind of went through with that,” Whittington said.
She said she worries that people who were supposed to be pardoned could still run into barriers to housing and employment due to the fact that their records still show a conviction.
Whittington also said that it didn’t make sense for each individual to go to court in order to get pardoned when the intent of the ordinance was to apply a blanket pardon to anyone with a conviction. But in order to carry out the blanket pardons, she said, the Municipal Court records need to be changed to reflect that the convictions are now non-convictions, and for any related fines and warrants to be removed.
In an interview with The Lens on Tuesday, New Orleans Municipal and Traffic Court Chief Judge Sean Early said that court staff were working on the issue, but also raised a number of questions and concerns over how the pardons should be implemented. He called the legislation an “anomaly” and suggested more laws may need to be passed for the pardons to take effect.
“We don’t have authority to make a case go away,” Early said. “There has to be some more enabling legislation, I think, coming from Helena Moreno’s office and the city council to give the City Attorney’s Office the full authority or charge to nolle prosequi the cases — to dismiss them.”
But in a statement, Moreno’s office pointed out that the City Council has the legal authority to grant pardons.
“The Council, which has always had legal pardon power, unanimously passed a law to grant pardons to those with municipal possession of marijuana charges or convictions,” she said in a statement. “No one has filed a single legal challenge contending that the Council’s marijuana pardons are improper. To the contrary, they have received near-universal support from every segment of the criminal justice system and received national recognition.”
In the same interview, Early acknowledged that the pardons had already been issued by the council.
“That’s an interesting point, a very interesting point. So if the council did the pardons, then do we do anything?” Early said. “So they have pardoned everybody. So what do we do from there? It’s not really asking the judges to pardon them. It’s the City Council that pardoned them. So what do we do from a criminal procedure point, to make it part of the record? Do we just put on there — ‘pardoned by the City Council’? Wipe out fines and fees and then make a minute entry, ‘pardoned by the council?’ ”
Whittington said that was more or less correct, in addition to changing the disposition of cases to reflect that they are no longer convictions. Neither the judges nor the city attorney should be required to take any legal action with regards to these cases, she said, because they have already been pardoned by the City Council.
“The court just simply needs to find all of the eligible records, and change the disposition and waive any outstanding debt that might still be on the record, ” Whittington said.
Moreno, like Whittington, expressed frustration with the delay. She said that her office had been in touch with Judge Mark Shea and Municipal Court Clerk Chris Sens leading up to the passage of the legislation. Shea confirmed that conversations had taken place, but declined to comment beyond that. In her statement, Moreno did not elaborate on the contents of the conversations or whether the judges raised concerns prior to the passage of the legislation regarding legality or logistics.
But she said that it was only recently that she was made aware that there were issues getting the pardons implemented.
“It is surprising that issues were brought to the Council’s attention just 2 weeks ago considering the legislation was passed this past summer,” Moreno said. “We expect that those pardons will be effectuated in the municipal court system and look forward to working constructively to see this law through. I hope that this is just a minor system and coding issue that needs to be addressed and not resistance from the court to mark cases as pardoned.”
Whittington, however, said she had concerns prior to the passage of the legislation that the logistics may not have been fully worked out.
“I think we tried to raise this at the time with the City Council,” Whittington said. “We asked staffers like, ‘What is the process? What will be done?’ And I think the idea and the power of a statement that says, ‘There’s been 10,000 pardons granted,’ is wonderful. I don’t know that anyone thought through the what will happen next.”
“I think it’s gonna get done,” Early said. “It’s nuts and bolts is really what it comes down to. How can we do this? Nuts and bolts to clear out the computer system and to carry out the intent of the legislation.”
It is not the first time New Orleans Municipal and Traffic Court has been tasked with addressing large numbers of old cases. In June, then-New Orleans City Attorney Sunni LeBeouf dismissed nearly 400,000 old, non-violent cases dating back to 2010. According to Early at the time, the court hired an IT company to write software allowing them to query the case management system in order to identify the correct cases to dismiss.
Whittington said that getting the pardons recognized in the court record is a good first step, but would like to see the cases removed from public view altogether. That process — known as expungement — can be both time consuming and costly. The Justice Accountability Center, along with other advocacy organizations, have been working on state legislation known as “clean slate” that would make the process automatic for certain criminal records. Last legislative session, however, that proposal was killed after the Louisiana State Police and the Louisiana Supreme Court raised concerns.
Whittington said that she believes Municipal and Traffic Court could move forward with expunging the marijuana convictions without each individual going through the process themselves.
“The law outlines a process, and if the court was willing to take that process upon itself to notify NOPD, the Sheriff, and the City Attorney’s office or the District Attorney’s office, yes — I think that’s our belief of how clean slate in the future should work,” she said.
Moreno, in her statement, said at the next legislative session that begins in March, she would push lawmakers to pass automatic expungements that would apply to those who received pardons from the council.