Cincinnati announced in mid-March it will not be able to expunge minor marijuana records any time soon. Officials said a state law local judges deemed applicable stands in the way. But marijuana cases in Cleveland could soon be vacated or expunged. If the state law applies in both places, why the difference between the two cities?
Hamilton County Judge Curt Kissinger says he and other judges recognize the "collateral consequences" of minor marijuana convictions. But he says Ohio Revised Code section 2953.3 isn't on the city's side when it comes to bulk expungements.
Kissinger is on the Criminal and Traffic Committee, one of roughly seven out of 14 municipal court judges on the committee. It met with Cincinnati officials about the issue.
He says the committee explained the code and says a request for expungement or record seal has to be filed by the person convicted of the crime.
"That was the most obvious issue that we identified, is that the city isn't a proper party, the proper applicant, under the statute," he said. "What we advised the city is that this is the initial biggest hurdle that we see."
But judges throughout the state can interpret the law differently.
"That would be completely up to their separately elected judges, and they may well come to a different conclusion. It's not unusual for courts throughout the state to reach different conclusions or interpretation of the statutes," Kissinger said. "Maybe they have a different interpretation of that than we do."
It's not entirely clear whether Cleveland judges are finding different interpretations. Despite Cleveland city officials' push for expungements, that might not happen.
Vacating vs expunging offenses
On April 6, Cleveland Mayor Justin Bibb, Chief Prosecutor Aqueelah Jordan and Council President Blaine Griffinannounced the filing of a motion to expunge 4,077 marijuana convictions that date back to 2017. That includes possession of 200 grams or less of marijuana.
But the motions still have to be approved by Presiding Judge Michelle D. Earley and other judges in Cleveland Municipal Court.
In a brief statement from Earley, she says "We will coordinate with the Clerk’s Office to efficiently process the motions to dismiss/vacate convictions."
Vacating a conviction is different than expunging one.
Chris Jones, director of the Appellate Division for the Hamilton County Public Defenders, says the expunging or sealing of a record is a better option for defendants.
Expunging a record means a criminal conviction is destroyed and cannot be accessed by anyone. They're very rare outside of juvenile cases. In cases involving an adult, records are often sealed instead.
"The record is sealed from most public view, except for certain entities that can see it, like law enforcement, licensing commissions, things like that," Jones said.
Vacating or dismissing a charge means an arrest or charge can still show up on a background check. But it will be noted a person was not charged with the crime.
That still has an impact on people.
"Believe it or not, I've seen people not get jobs or not get housing because they have anything that has to do with drugs," Jones said. "So, they were arrested for, it'll say 'drug abuse,' back in the day. And that drug abuse is basically a minor misdemeanor weed ticket. And even if the case was dismissed, it's still on your record. So a lot of people think that once their case is dismissed, that it just goes away. That's not the case."
Cleveland city officials have not responded to repeated requests for comment about the discrepancy, except to say Prosecutor Jordan is set to meet with Judge Earley about the issue.
Cincinnati may explore a 'similar strategy'
The outcome of Cleveland marijuana convictions will have an impact on what happens in Cincinnati.
City Solicitor Andrew Garth said, in an emailed statement, city officials are watching the goings on in Cleveland.
He wrote, "The Cleveland approach of vacating and dismissing marijuana convictions may prove to be an effective workaround until such a time as the law changes. If Cleveland’s efforts prove successful, then the City of Cincinnati will engage our courts about potential for a similar strategy locally."
Garth previously said the city's lobbyists also plan to work with the state legislative delegation to make changes that would allow city prosecutors to expunge a bulk of eligible cases.
