In New Hampshire, possession of small amounts of cannabis was decriminalized in 2017.
But for those who already have possession charges, getting their record cleared might not be so easy.
When House Bill 399 passed in the New Hampshire legislature last year, Heather Marie Brown was excited.
“If I could have done cartwheels where I was, I would have done cartwheels,” said Brown, in an interview with NHPR’s Peter Biello in July of 2019.
The bill would allow people to annul past criminal records for possession of small amounts of cannabis.
“I don't want a criminal record to haunt me for the rest of my life for doing what I have always felt was best for my health,” she said.
Brown started using cannabis after struggling with psychiatric disorders when she was a teenager.
“I just feel like I was used as a guinea pig back then because I was on like 27 pills a day. All of them together caused excessive weight gain, I had muscle twitches, it actually made my depression greater and more severe.”
Brown wanted to try something different, and she’d read and heard good things about cannabis. It was effective, and she says she’s never gone back on medications consistently.
For her, cannabis represented “freedom.”
“Honestly, it represented an opportunity to not have to spend my life attached to a pharmacy,” she said.
But when Brown was growing up, possession of any amount of cannabis was completely illegal in New Hampshire. There were no medical marijuana dispensaries.
She was arrested a few times and says she has two criminal charges on her record.
Because of those charges, she hasn’t been able to pursue her career ambitions in nursing. The drug charges make her ineligible for federal financial aid to go to school, and she hasn’t been able to get her certification to become a nursing assistant.
Under House Bill 399, both of Brown’s charges are eligible to be annulled, but in the year since the bill passed, she has not been able to make progress, especially during the COVID-19 pandemic.
“Unfortunately, it's not as simple as what they would like people to believe,” said Brown.
TLDR: How to annul a criminal record for cannabis possession in New Hampshire
A year after House Bill 399 was voted into law, Brown still hasn’t been able to annul her record.
But how exactly do you do it?
After waiting on hold for 20 minutes and a call with the Concord court clerk, here’s what we learned about how to annul a cannabis record, a process that we were told can take up to six months.
New Hampshire courts website and includes a checklist for guidance
- Gather your case summary.
If you don’t already have it, you can call the Information Center (1-855-212-1234) and they’ll look it up for you if you provide your full name and date of birth, and email it to you.
You’ll need this information for step 2.
- Obtain and fill out the annulment form.
During the pandemic, in-person access to the courts is limited, so this has to be done online.
The annulment form is three pages long. In addition to basic information like name and date of birth, the form asks for the details of the charge, such as the case number, RSA or statute violated, the date of conviction, plus if the crime resulted in a conviction, or if the crime was violent.
- Include the court fee.
The court won’t process your request without the payment of $125 to the court. After you’ve submitted your request, you may be required to pay $100 to the Department of Corrections, and $100 to the Department of Safety if the annulment is granted. Those agencies will notify you by letter when the fee is due.
You can waive the fees if you can prove you don’t have the means, Kate Geraci, a circuit court administrator, said that you can include a note detailing your situation, like if you’ve recently lost a job. Geraci was unclear whether documentation is required, and explained that judges have discretion.
- Mail or drop off the form.
While the form does not include these instructions, you’d submit your completed paperwork in the dropbox at the court in which you were prosecuted between 8am and 4pm. You can also mail it in.
- Hear back.
After you submit the annulment form and your payment is processed or waived, Geraci explained that the court sends a petition to the prosecutor, who then has ten days to object and request a hearing.
The only basis for objecting is if the prosecutor believes the amount of marijuana is greater than three-quarters of an ounce. If there’s no objection, the annulment is granted.
New Hampshire and Cannabis: A History
Historically, cannabis has been used as a medicinal product.In the late 1800s, cannabis products were sold openly in public pharmacies. It wasn’t called marijuana in the U.S. until the early 1900s when detractors wanted to underscore the drug’s Mexican-ness.
The U.S. saw an influx of Mexican immigration from the Mexican Revolution beginning in 1910, and xenophobia combined with fears of the so-called Mexican “locoweed” gave rise to public action. State after state enacted laws to restrict the drug, until it was outlawed at the federal level in 1937 and later with the Controlled Substances Act in 1970. Cannabis was placed in the most restrictive category, Schedule I, deemed to have high potential for abuse and addiction, and no accepted medical use.
In the 21st century, many states across the country have relaxed cannabis restrictions - but New Hampshire is not one of them.
“New Hampshire has lagged considerably behind other states in New England,” said Matt Simon with the Marijuana Policy Project, a national nonprofit organization dedicated to ending cannabis prohibition in the US.
The House first voted to decriminalize cannabis in 2008, but it wasn’t passed by the Senate until 2017.
Simon says the House has always been progressive on the issue of cannabis, but the Senate, and the governor, first Gov. John Lynch and then Gov. Maggie Hassan, have almost always blocked any big changes to cannabis law. In fact, the House passed bills every year from 2008 to 2012, and every time it was either killed in the Senate, or it was vetoed by the governor. An attempt to override the veto in 2009 fell short by just two votes in the Senate. It wasn’t until 2013 that a medical cannabis law was passed. And then in 2017, a bill decriminalized the possession of less than ¾ of an ounce.
Possessing less than that was demoted to a civil infraction, punishable by a $100 fine. Cannabis in excess of three quarters of an ounce is still a criminal offense and possession of any number of plants is still a felony.
But why did it come to three quarters of an ounce?
“We call it a Bradley,” said Representative Renny Cushing, the sponsor of the 2017 decriminalization bill. Cushing says the House had the civil infraction limit as an ounce in their bill, but the Senate had it at half an ounce in the Senate bill. They were locked in a stalemate.
“Senator Jeb Bradley said, All right, three quarters of an ounce, settle, and so we just split the difference,” said Cushing.
Three quarters of an ounce amounts on average to a few dozen joints, although it depends on how you roll them.
The idea is to discourage dealing.
Cushing says he sponsored these bills because of the negative impact criminal records have on people’s lives.
How convictions affect lives
“I heard people losing ... student loans, losing employment, losing housing, all because of the stigma and the legacy of it,” said Cushing.
It’s not just a fine, or just serving time in prison. Cushing says it follows you for the rest of your life, like a life sentence.
“People were collateral victims of this failed War on Drugs and that we ought to do what we can to restore to repair the damage that we did,” said Cushing.
That damage falls disproportionately on Black people. According to a 2020 ACLU report, Black people are four times more likely than white people to be arrested for marijuana possession in New Hampshire, even though rates of use between the two groups are roughly equal. Out of those who are arrested, you’re more likely to be charged and convicted if you’re poor.
Attorney and former public defender Paul Twomey explained that a person charged with possession who can’t afford to hire their own attorney usually takes a plea deal. They admit guilt, and in return, they don’t have to do time, and their fine is reduced, but they get a conviction on their record. But he said that things often turn out differently for the person who can afford an attorney.
“I was a criminal defense lawyer for forty years and I can think of one person who got convicted in District Court for simple possession of marijuana. It just doesn't happen,” said Twomey.
“That person by the way, got dismissed when it got to the county attorney’s office... so it got down to zero. It doesn't happen because in reality nobody really cares about it enough to actually go to trial, enough to bring in state lab people to testify that it's really marijuana, they don't care about it.”
The burden is on prosecutors to get a lab analyst to testify that the substance is indeed marijuana. They can get their testimony in a written report, but lawyers know to request the lab analyst to come in person.
“For the prosecutor, that's the big problem is getting somebody in the state labs down to Concord down to the court or wherever it is to testify,” said Twomey.
Rather than going to all that trouble, they drop the charges.
“Cops and prosecutors aren’t interested in working for marijuana convictions,” said Twomey.
“It's really a way to get you into the criminal justice system to enable searches of cars to enable stops of cars. That’s the only value.”
In other words - cannabis convictions are a way to tag people with a record - and once you’re in the system, it’s hard to get out.
After the annulment
As far as Heather Marie Brown’s difficulty, circuit court administrator Kate Geraci said she couldn’t comment on this particular case, but she did say that she understood the confusion.
“You know, the terminology certainly can be confusing to people that aren’t well-versed in the criminal justice system, like most people that come through the criminal justice system, it's not that that's a common event for them,” said Geraci.
“To parse through the annulment statute... you know, there's a lot to it.”
Geraci doesn’t know how many petitions they’ve received for annulment of records for small amounts of pot. She said that when a record is annulled, it’s expunged from their case management system. They don’t see it anymore, so they don’t know how many people like Brown are struggling with the process.
But it’s clear that annulling a criminal record is not a simple process. There are a lot of hurdles, including fees that could be prohibitive.
Why not just automatically annul eligible cases, like other states have done?
“Yeah. I mean, I guess that's probably a question for the legislature since they're the ones that have created the annulment statute,” said Gerarci.
As for Brown, she chalks up her difficulties to the COVID-19 pandemic and difficulties navigating the legal system remotely.
But she’s eager to move on.
“The life that I'm living now is the complete opposite of the life that I had anticipated being able to create for my kids,” she said.
“And that has me feeling like a failure at this point. Even though I know I'm not but… for me to be constantly held down because of a plant is absolutely ridiculous.”
Since Brown’s career ambitions were put on hold, she’s worked odd jobs to stay afloat. But she’s also been active in her volunteer work, especially for kids. In fact, Heather says she was the first New Hampshire parent to ever sit on the board of directors for the National Headstart Association. She currently serves on the therapeutic cannabis medical oversight board with the New Hampshire Department of Health and Human Services.
She says the first thing she’ll do once her record is annulled is to pick back up her studies to become a nurse. She wants to be able to be there for people like her: people that feel left behind by the medical industry.
“I just want to be there for the little guy,” said Brown.