Is Harrisburg the Next Pennsylvania City to Soften Prosecution of Marijuana Possession?

Harrisburg could be the third city to pass laws that would reduce the severity and penalties associated with marijuana possession in Pennsylvania. Currently, a person that possesses up to thirty grams of marijuana for personal use in Pennsylvania is charged with an ungraded misdemeanor offense under 35 P.S. § 780-113(a)(31), and that charge is punishable by up to thirty days in jail, a $500.00 fine, and a suspension of Pennsylvania Driving Privileges. The current law in Pennsylvania does not allow for the expungement of a misdemeanor charge, so a conviction of marijuana possession would remain on a person’s criminal record and thereby could impair the person’s ability to obtain employment.

Marijuana Possession Laws in Pittsburgh and Philadelphia

While possession of a small amount of marijuana remains illegal in Pennsylvania, Pittsburgh and Philadelphia have passed city ordinances that added civil infraction violations for marijuana possession. In those cities, a person caught smoking or possessing less than thirty grams of marijuana receives a non-criminal citation, and a person that is guilty of the offense must pay a relatively small fine. Because the infraction is not criminal, the infraction should not appear on a criminal background search and would not need to be reported on employment applications that ask about prior criminal convictions. A person that pays a fine for a civil infraction of weed possession would not need to report the incident on employment applications that only ask about criminal convictions.

Harrisburg’s proposal is slightly different in that it intends to create a sliding scale of penalties, so people who are repeatedly caught for marijuana possession will face increased penalties. According to a Penn Live article, a first and second offense of marijuana possession would be classified as a summary offense instead of the current misdemeanor grading. In Pennsylvania, the least severe criminal charges are summary offenses, followed by misdemeanors, and then culminating with felony charges. A first conviction in Harrisburg would result in payment of a $100.00 fine, a second conviction carries a $200.00 fine, and a third offense is treated as the normal misdemeanor violation for marijuana possession in Pennsylvania.

Benefits of Summary Conviction over Misdemeanor Conviction

What is the primary benefit for a person that pleads guilty to a summary offense over a misdemeanor offense? First, summary charges are simply less severe to start with and thereby are often not viewed as harshly by prospective employers. Some employment applications only require an applicant to report misdemeanor and felony convictions, in which case the summary convictions would not need to be disclosed. Some people, including some lawyers, advise clients that summary convictions do not appear on criminal background searches. Such advice is often not current. Many employers and even landlords are paying background search companies that are finding summary conviction information on the Administrative Office of Pennsylvania Courts website. Because people are told that such charges will not appear on a background search, some of those people do not report such convictions on employment applications that ask the applicant to report “all criminal convictions.” While many employers do not refuse to hire a person due to a summary conviction, employers will often refuse to hire a person that lies on an employment application about prior criminal history.

The other benefit to a summary charge is that a conviction is eligible to be expunged if the person remains free of arrest and prosecution for five years following the conviction. Misdemeanor and felony convictions cannot be expunged from a criminal record in Pennsylvania, but a summary conviction may be expunged. In order to seek an expungement, a person must file an expungement petition with the Court of Common Pleas in the county in which the charge was filed. The expungement is discretionary and not mandatory. This means that a judge normally does not grant the expungement without scheduling a hearing and listening to testimony as to why he should grant the expungement. Ultimately, it is up to the judge whether or not to grant the expungement. In order to increase the likelihood that an expungement is granted, a person should retain a criminal defense attorney that has experience in filing and obtaining expungements in that particular county. Having an experienced expungement attorney substantially increases the likelihood that the expungement is granted.