Criminal Justice

San Francisco district attorney to use algorithm to aid marijuana expungements

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The San Francisco district attorney’s office announced it will use an algorithm to help determine expungement eligibility for those with some marijuana convictions going back to the mid-1970s.

“When the government uses 20th-century tools to tackle 21st-century problems, it’s the public that pays the price,” says District Attorney George Gascón in a statement. “California has decriminalized recreational cannabis use, but a marijuana conviction continues to serve as a barrier to employment, housing, student loans and more.

“Lack of access to employment and housing are two primary drivers of recidivism, so until we clear these records it’s government that is effectively holding these people back and impeding public safety.”

The expungements were made possible by the 2016 passage of Proposition 64, which legalized marijuana for recreational use. The tool was built by Code for America, a San Francisco-based nonprofit.

“We believe government can work dramatically better than it does today, and the criminal justice system is one of the areas where we are most failing the American people,” Jennifer Pahlka, executive director of Code for America, says in the release. “By reimagining existing government systems through technology and user-centered design, we can help governments rethink incarceration, reduce recidivism, and restore opportunity.”

While the San Francisco DA’s office was already filing motions to expunge marijuana convictions, the release says that the process for eligible felonies is more labor intensive. So, they sought help to automate the process. The application developed with Code for America will search records to find eligible people and auto-populate relevant court documents.

As of May 14, there were 962 motions to dismiss misdemeanor marijuana convictions prepared and 428 granted, according to the district attorney’s office.

The new technology will be applied to 4,940 felony marijuana convictions dating back to 1975. This process requires no action from individuals having their record expunged. It was not clear if the people benefiting from this process will be notified, which runs the risk of people continuing to disclose a criminal record they no longer have.

Evonne Silva, senior program director, criminal justice and workforce development at Code for America, explains that the courts have historically given notice in these cases. She adds that criminal rap sheets, the information analyzed by Code for America’s algorithm, do not have up-to-date contact information and that her organization is not currently undertaking work to fill in that information gap.

Representatives from the district attorney’s office were not available for comment.

This move by Gascón follows two recent, but growing, national trends: local government attorneys implementing criminal justice reform through their offices and the use of technology in the expungement process.

Seattle City Attorney Pete Holmes and recently elected Philadelphia district attorney Larry Krasner have both moved to dismiss marijuana charges or expunge convictions.

Code for America’s technology development follows on work being done in Maryland and Pennsylvania by two ABA Legal Rebels. Michael Hollander, an attorney at Community Legal Services of Philadelphia, and Matthew Stubenberg, attorney and IT director at Maryland Volunteer Lawyer’s Service in Baltimore, created databases of criminal records and algorithms to find people eligible for expungement.

As the ABA Journal reported in 2015, Hollander’s work led to a notable increase in expungements filed in the First Judicial District of Philadelphia, according to Keith Smith, director of active criminal records for the criminal trial division at the court. Hollander’s project dates back to 2011.

A report on expungement technology published in 2016 by SIMLab, a technology nonprofit that closed at the end of last year, found that expungement tools like the ones developed by Code for America, Hollander and Stubenberg, when used by attorneys, showed an increase in expungement filings.

Covering all forms of expungement allowed in Maryland, Stubenberg’s creation, called MDExpungement, has created 33,000 such filings and generated enough filing fee waivers to save Marylanders $756,600 as of last September, he said.

“I think it’s fantastic that [Code for America has] buy-in by state and local governments,“ says Stubenberg. “That’s usually very hard to do.”

However, he says “there are some limitations” to this type of work.

He says that those trying to get American citizenship or face deportation can be hampered by expungement.

The challenge is that federal authorities may have evidence that an arrest occurred, which could be material to a person’s citizenship or deportation hearing. However, if the record has been expunged, the person may not be able to show documentation that is certified to the degree that immigration authorities require, explains Stubenberg. Ultimately, this could jeopardize people’s immigration process.

“Right now, it’s just a lot of gray area to what [the feds] will accept,” he says.

In responding to this issue, Silva at Code for America shared a document related to Prop 47, which allows for a person to expunge or reclassify certain nonviolent felonies to misdemeanors. While the document recommends everyone should seek expert advice regarding their immigration status, it also says “there is no downside to helping an immigrant get an expungement or reduce a felony to a 364-day misdemeanor.”

Restores dropped word in first paragraph at 3:25 p.m.

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