Last summer, the New Orleans City Council made the unprecedented decision to issue a blanket pardon for anyone convicted of simple possession of marijuana, under city law, after 2010, which council members said would impact around 10,000 old cases.
The move was at least partly symbolic — an acknowledgement of what the council saw as the overly punitive and historically racist enforcement of marijuana laws, at a time when many states and cities around the country are moving to legalize the drug. It wouldn’t affect anyone charged and convicted under state possession laws. But council members also hoped that it would help people with old municipal convictions clear their records and have an easier time accessing jobs, services, housing, and employment.
From the beginning, it was not entirely clear how the blanket pardons would actually be reflected on someone’s criminal record. Normally, an individual petitions either the Mayor or the City Council for a municipal pardon, and that person then files the pardon into the record. But the blanket pardons supposedly required no action from any individual with a conviction. The council left it up to the New Orleans Municipal and Traffic Court clerk and judges to figure out how to apply the pardons.
And in December, The Lens reported that six months after the ordinance passed, the court had not taken any action on old marijuana convictions or open cases.
Now, Chief Municipal and Traffic Court Judge Paul Sens says that at least in his section of court, he has waived all outstanding fines and fees related to simple marijunana possession, and closed any pending cases. Those two things, he said, carried out the intent of the law.
“I think what they wanted to accomplish, we’ve already done,” Sens said last week.
But he said that the court wasn’t going to take any action with regards to making a record of the actual pardon issued by the Council.
“The court can’t do that,” Sens said. He called the pardon ordinance “ill-conceived.”
Advocates argue that while waiving fines and fees and closing cases is a good first step, the pardons themselves being reflected on someone’s record is important. Sarah Whittington, with the Justice & Accountability Center of Louisiana, said that if the pardons aren’t recorded, the old convictions could impact people who are attempting to get a job, housing or insurance.
“All that could have a serious impact on the person,” she said.
She also said she had concerns that a failure by the court to recognize the pardons could create a barrier for people who are attempting to get their records expunged.
Last month, Gov. John Bel Edwards signed a bill that would waive expungement fees — which are higher in Louisiana than anywhere in the nation, at $550 — for anyone that has been pardoned. Council President Helena Moreno said that her office worked with state Rep. Joe Marino, No Party of Gretna, to get the bill passed and that it “aligns directly with our local focus on cannabis decriminalization and public safety.” The law goes into effect August 1.
District Attorney Jason Williams has the authority to grant fee waivers in New Orleans, and said in an email that he “looked forward to exercising our authority to grant these fee waivers to help people progress and live better lives.”
But Whittington said that unless the court recognizes the pardons in their records, those fees might not end up being waived.
“I don’t know that a letter from City Council or the City Council ordinance would be sufficient for law enforcement, state police and others to accept that as a valid fee waiver if the court records don’t also say not guilty and/or pardon received — something like that,” Whittington said.
But Sens said that he doesn’t believe that the judges have “authority” to grant pardons — despite the fact that the ordinance passed by the council is in fact what is legally granting the pardon.
“As a judge can’t go in and say I’m granting the pardon because the council told me to grant a pardon,” Sens said. “I don’t have that authority. … We’ve accomplished what their intent was. But we did it in a way that I think was the legal way to do it.”
Whittington and others have pointed out that the judges are not granting the pardons — they have already been granted by the City Council. They say the court just needs to come up with a mechanism in order to make sure that the pardon is reflected on an individual’s record.
“I don’t doubt that there are system limitations in that,” Whittington said. “I wouldn’t be surprised if it’s going to be more complicated because there isn’t an executive pardon button.”
But she said that it was necessary to carry out the full intent of the ordinance passed last year.
“I don’t think that that is in line with what the City Council’s intention was in granting those pardons,” she said.
The struggle to get the pardons reflected on peoples records is not the only example of officials not fully carrying out the intention of the council in relation to marijuana enforcement.
At the same time the council passed the retroactive pardons ordinance, they also passed an ordinance that prospectively pardons all simple possession of marijuana offenses. But for several months, New Orleans Police Department officers continued writing tickets for the crime, and people were still showing up to court.
But following criticism from advocates and council members, NOPD announced in early January it had changed its policy, and would not longer be issuing those citations.