The clean slate promised under New York marijuana laws has proven elusive

When New York legalized recreational marijuana two years ago, it meant tearing up the path to prison that had long been widened for possession convictions.

But even after legalization took effect and New Yorkers could smoke with impunity, Frederick Volkmann was sent to a maximum-security prison after violating the terms of his probation on a 2019 felony marijuana charge. Locked up with violent criminals, he tried his best to avoid confrontation.

“I saw people getting cut in the yard — there were fights almost every day,” Volkmann, 26, recalled in a phone interview from prison. He said there were several suicide attempts: “I saw one being taken out of their cell on a stretcher.”

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Thanks to the 2021 law, Volkman, who will be released from a boot camp-style lockup on Monday, is one of the few remaining inmates in New York held solely on marijuana charges, officials said.

He will return to a world where marijuana seems to be everywhere, sold in storefronts and from vending trucks, wafting its aroma from streets and moving cars. But as many New Yorkers freely point out, complications created by the law linger, including thousands of vague criminal charges that recall the state’s earlier, draconian approach to justice.

Legalization offers criminals a clean slate by removing convictions from their records, applying for a job or loan, renting an apartment or obtaining a professional license, an important step in turning their lives around. Deportation was a pillar of the law’s promise to reverse the effects of the war on drugs.

The 2021 law cleared 107,633 convictions, and a 2019 law that decriminalized small amounts of marijuana cleared another 202,189, state justice officials said.

These convictions are mostly for low-level offenses. The situation is even more fraught for people like Volkman who have felony convictions for possession of large amounts of marijuana.

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Most of the nearly 9,000 marijuana convictions remain on offenders’ records long after they have served their sentences. Also, many minor marijuana convictions that are related to more serious crimes are not automatically expunged, despite the law’s requirement.

Most criminals didn’t even try to clear their charges — some because they didn’t know the new law allowed it, others because they thought it would happen automatically and others because of the onerous filing process, advocates say.

Furthermore, the omission of a single number in the legalization law — the Roman numeral i — prevented criminals from filing a simple form to plead guilty. The mistake remains uncorrected.

“It’s literally a typo,” Emma Goodman, staff attorney at the Legal Aid Society, said of the error, which made an eye-opening joke about government dysfunction.

“Everyone in Albany understands this is a mistake, and there’s no easy way to fix it,” he added.

The result is that instead of filing the form, they must prepare a legal motion to reduce the conviction and submit it to the county court where they were convicted. The district attorney’s office where the original offense was prosecuted may consider the conviction before the judge who convicted it.

Such movements have largely taken off in more liberal counties, such as New York City’s five boroughs. But elsewhere, something is being contested, a development that warrants being described as troubling.

“There are still significant groups in some parts of the state that oppose the law and don’t want to enforce it,” said Goodman, who specializes in expunging criminal records.

A judge in Dutchess County, north of New York City, has denied a man’s bid to clear his record of a marijuana conviction. In a move that will likely set a precedent for similar challenges, the man is appealing the ruling.

A judge in Nassau County, Long Island, issued a similar decision against a man seeking to have felony charges dismissed for possession of 10 pounds of marijuana.

And after a senior district attorney opposed a man’s motion in another case, it was denied by a judge, said Jeffrey Hoffman, the man’s lawyer.

“My client is a 20-year-old who has been denied employment advancement in his career because of a felony,” Hoffman said.

Although lawyers are aware of only a handful of cases opposing criminal clearance motions, the current ones are “the tip of the iceberg, due to thousands of convictions,” he said.

Not everyone is interested in automatic forgiveness.

“We want to see a clean slate for low-level convictions, but when it comes to high-level felony convictions, we have to go a little slower,” said Kevin Sabet, CEO of Smart Approaches to Marijuana, a group. It opposed the Legalization Act before its passage and claimed it was a rational guideline

“For those who may be part of a transnational criminal organization, we don’t want a computer to determine what happens to their records,” Sabet said. “We want a judge to look at all the factors and the whole context of the case.”

In the Dutchess County case, Judge Michael Graubard, 55, who was arrested in 2014 and had 114 pounds of marijuana in his car, reviewed the motion filed on a felony charge.

Graubard pleaded guilty and served nearly two years in prison. She says the crime is the only blemish on her record and has prevented her from achieving her goal of becoming a schoolteacher, prevented her from getting another job and prevented her from applying for home-equity loans.

“There’s less of a stigma to marijuana now, but some people still won’t hire criminals, even when the state is setting up an entire marijuana industry,” said Graubard, who has filed a motion to vacate his conviction.

Because the 2021 law still makes possession of large amounts of marijuana a felony, including Graubird’s felony conviction for transporting 114 pounds, William Grady, the Dutchess County district attorney, opposed the motion to expunge Graubird’s record.

The judge agreed and reduced the conviction to a lesser felony. Graubird is appealing the decision. His lawyer, Wei Hu, argued before a four-judge appeals panel last month that “statutory errors” – typos – in the 2021 law should not affect his client.

Hu maintained that the judge’s decision to reduce Graubard’s conviction to a lesser offense violated the 2021 statute because it did not allow Graubard to suffer “serious and ongoing consequences.”

Dutchess County Prosecutor Anna DeHaen noted that Graubird’s conviction for possession of a large amount of marijuana was still a felony under the new law, and that the county judge had correctly and fairly applied the law to convict him of a lesser offense instead. To clear it up completely.

Legal Aid’s Goodman said a coalition of public defenders and advocates is urging lawmakers to correct the typo in the law, but said doing so would require introducing a corrective bill, which hasn’t happened yet.

Crystal D. A spokeswoman for Peoples-Stokes, the state Assembly’s Democratic majority leader and sponsor of the 2021 legislation, said her office is reviewing the matter and will make necessary changes.

“It may take some time, but we’re on it,” spokesman Mark J. Boyd said.

As for Volkman, who state records indicate is one of the only marijuana-offenders in prison, he filed a motion after the 2021 law passed to set aside his conviction. A judge denied it.

In a phone interview, he said he felt it was unfair to keep him in prison even after marijuana was legalized.

“Marijuana is not a very dangerous drug — it’s not something that people should be punished for, especially with everything that’s going on in New York and legalization,” he said.

He was arrested in 2019 at 22 with seven pounds of marijuana and $65,000 at his home in Glens Falls.

Under a plea deal, Volkman, who goes by Derrick, served five months in county jail but then violated his probation by failing a drug test for marijuana, which he said he had been smoking since he was 13 to satisfy his moods and anxiety.

After being arrested for driving under the influence, he found himself resentenced on his original marijuana charge even though the state had promised to prioritize marijuana offenders in granting dispensary licenses.

Volkman said he hoped to eventually work in the legal marijuana industry and hoped his drug charges would not hinder him professionally.

“If none of this had become legal, we wouldn’t be having this conversation,” said his father, Fred Volkman. “But as all of this was evolving, with legalization, pot is now OK, people are saying, ‘It’s OK, it’s OK now.’ And they are still beating him. That’s the frustrating part.”

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