What Biden’s federal marijuana pardons could mean for New Hampshire

The Granite State remains alone in New England in not legalizing pot

In the wake of President Biden’s announcement of pardons for federal marijuana possession convictions, New Hampshire defense attorneys and criminal justice reform advocates said they hope to see state policy move in a similar direction.

The direct impact of the pardons will likely be limited in New Hampshire. Federal prosecutions for simple marijuana possession are rare, with most convictions coming in state court.

“Probably more important is the signal that it sends to state and local authorities that people really should not be deprived of employment opportunities and other opportunities because of a marijuana conviction,” said Richard Guerriero, a Keene-based defense attorney.

New Hampshire decriminalized small amounts of marijuana in 2017, though it remains illegal. Prior to that, several thousand people were arrested each year in the state for simple marijuana possession — a disproportionate number of them Black. National data shows white and Black Americans use marijuana at roughly similar rates.

Emma Sisti, legal aid pro bono manager at 603 Legal Aid and a former public defender, said those convictions have lasting impacts.

“People didn’t get student loans because of these charges,” she said. “People lost their housing. People can’t get jobs because of these charges.”

In announcing the pardons, Biden also said the federal government would review how it classifies marijuana, which is currently treated the same as heroin and ecstasy. And he called on governors to take steps to clear state marijuana convictions.

In New Hampshire, that’s a little complicated. The governor can’t issue pardons on his own; instead, he needs Executive Council approval. And the New Hampshire Supreme Court has said that while a pardon ends the consequences of a conviction, it does not wipe the record clean — meaning the charge could still surface in record checks by employers and landlords.

Because of that, Jeff Odlund, an attorney at Greenblott & O’Rourke in Concord and a member of the New Hampshire Association of Criminal Defense Lawyers board, said the state should also annul those convictions en masse.

In 2019, the NH Legislature made it easier for people to annul prior convictions for possessing up to 3/4 of an ounce of marijuana. But Odland said that still puts the burden on the individual to know about the law, file the right paperwork and pay the associated fees.

“The Legislature, I think, would also have to pass a law, in essence, annulling and sealing all of those records for us to be in a situation where folks can really move past these minor convictions,” he said.

Gov. Chris Sununu is “reviewing the President’s actions,” his office said in a statement. “Under New Hampshire law and constitution, the Governor does not have unilateral authority to pardon anyone — it must go before the Governor and Council for consideration.”

Sununu’s office also noted that he signed legislation decriminalizing marijuana, expanding access to medical marijuana and allowing more people to annul old convictions.

“Governor Sununu has done more on the issues surrounding marijuana reform than any other Governor in New Hampshire history,” the office said.

Sununu has opposed past efforts to legalize marijuana in New Hampshire. As reported by The Boston Globe, he told the New England Council earlier this year, “I think it’s going to ultimately happen in New Hampshire, it could be inevitable.”

His Democratic opponent in this year’s race for governor, NH Sen. Tom Sherman, said on Twitter that he supported Biden’s move and would “expedite efforts to do so for state-level offenses.” A spokesperson said that could include making the existing annulment process work better by waiving fees, increasing staff to review records and launching public education campaigns.

Sherman also said he would support legalization, and Biden’s announcement prompted some advocacy groups, including the state chapters of Americans for Prosperity and the American Civil Liberties Union, to renew calls to do so. In recent years, the NH House has voted to legalize recreational marijuana , only for those measures to die in the Senate.

Frank Knaack, the ACLU-NH’s policy director, said the move to reclassify marijuana at the federal level could give legalization proponents a boost when the issue comes up again.

“One of the key arguments we’ve heard from opponents of legalizing marijuana at the state level in New Hampshire is because it’s a Schedule I controlled drug,” he said.

This article is being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.

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