Prosecution, sentencing and expungement questions remain

(Editor's note: This is the fifth in a series about the recent legalization of marijuana in Montana.)

With new marijuana laws coming into effect in the state after the passage of Ballot Initiative 190, there is a different bar to meet before marijuana activity crosses into illegal territory; it can still happen, but what happens to those people who have previously been arrested and convicted for activities that are now legal?

Under Section 36 of I-190, those with prior convictions for marijuana offenses can petition the court to be re-sentenced or have their conviction entirely expunged. All petitions for re-sentencing under Section 36 are to be served unto the county attorney for the county in which the person was convicted.

Up until the start of the year, possession of marijuana was treated as Criminal Possession of Dangerous Drugs, with the possession of less than 60 grams constituting a misdemeanor and anything more than that constituting a felony. Possessing any amount of marijuana with the intent to distribute was a felony.

It's difficult to gauge just how many instances of Criminal Possession of Dangerous Drugs included marijuana specifically in Montana in 2020, as the category also accounts for other, still illegal substances such as methamphetamine and LSD. What can be determined is that according to the Montana Department of Corrections, there were 1,245 cases of Criminal Possession of Dangerous Drugs and 113 cases of possession with intent to distribute in 2020.

Dawson County Attorney Brett Irigoin said most of Dawson County's 21 cases of possession and 13 cases of possession with intent to distribute in 2020, were not related to marijuana.

"The vast majority of our Dangerous Drug cases involve methamphetamine and a very small portion include only marijuana. Cases involving only marijuana are typically those involving trafficking of very large amounts of marijuana. We have several of those cases a year and they will not be affected by I-190 as the new law only decriminalizes amounts of marijuana under two ounces," he said.

So far, Irigoin said his office has not received any petitions for resentencing.

There also remains the question of what happens to those cases that are currently in the courts, with the individuals having been charged prior to the law going into effect. While the law provides an avenue of redress for the cases that have already been closed, there is no explicit language that directs courts on how to address currently active cases.

Rich Batterman, a private attorney who also serves as the city attorney for Circle, Wibaux, Baker and Ekalaka, noted that it is his understanding that those cases won't be immediately dropped as a direct result in the change of law.

However, he added that he is aware of several courts deciding to drop ongoing marijuana charges in anticipation of the individual charged potentially petitioning the court for re-sentencing once the case is closed anyway.

"In my opinion, no, pending cases are not automatically invalidated, I-190 does not appear to bar those proceedings. It is my understanding, however, that many jurisdictions are simply dropping prosecutions of offenses that are legalized under the new law in anticipation that some convictions will be invalidated and any conviction becomes moot," he said.

Irigoin said in his office cases previously initiated are being looked at one at a time, as some charges may be actions that are still not permissible under I-190.

"Cases involving marijuana offenses prior to the passing of I-190 are being dealt with on a case by case basis depending on the circumstances as possession, possession with intent to distribute and distribution of marijuana over certain amounts is still illegal," Irigoin said.

There is also the effect the new law has on the workloads of prosecutors and law enforcement themselves. Being a city attorney, Batterman noted that prosecuting marijuana offenses has been pretty common for him. More recently however, he estimates that marijuana possession makes up less than 5% of his cases.

Irigoin meanwhile said that while the change in the law may make it more difficult for law enforcement to investigate cases in some situations, his office hasn't seen any significant impacts in their ability to prosecute other cases. It is unclear though what responsibilities he may have under I-190, as most enforcement for violations of the new law are left to the Department of Revenue to handle with the potential role of county attorneys not really explained.

"Unfortunately, at this point my responsibilities as the county attorney for criminal enforcement under I-190 are not completely clear. The bill says that all penalties specified within the body of I-190 constitute civil penalties to be enforced by the Department of Revenue. To date, the DOR has not indicated how the civil enforcement will occur, which makes it difficult for county attorneys to know exactly what our responsibilities will be," Irigoin said. "The DOR has until October 2021 to put enforcement guidelines in place."

What is clear at this point is that I-190 has complicated how marijuana will be approached by law enforcement and prosecutors. However, it remains true that possession of marijuana in an amount over two ounces including 16 grams of concentrate is still subject to criminal penalties and can be prosecuted by the county attorney's office, according to Irigoin.

Requests for comment from several district court judges about the approach of the court system went unreturned.

Reach Hunter Herbaugh at [email protected].