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Tuesday, August 28, 2018

California Takes Steps to Undo Some of the Damage Done by Marijuana Prohibition

Now that marijuana is legal in the state, California has passed a bill to give those convicted of cannabis-related crimes a chance to expunge them from their record.

Image Credit: Flickr-Vaping360 | CC BY 2.0 (

Slowly but surely, America’s War on Drugs is coming to an end. Over the last several years, 30 states have altered their laws to allow for the legal use of medicinal marijuana while an additional nine states have gone a step further and legalized recreational use as well. But as we celebrate these drug war rollbacks, we need to remember that there is still another hill left to climb in this fight: justice for those formerly convicted of violating unjust laws that have since been nullified.

In 2016 alone, there were 653,249 cannabis-related arrests in the United States. Considering how many decades the drug war has spanned, this is a very small representation of the total number of individuals incarcerated as a result of marijuana prohibition. Needless to say, the number of lives that have been negatively impacted because of marijuana-related arrests is overwhelming.

What happens to those who were arrested for violating drug laws that have since been repealed?

But one question often left unanswered when new pro-cannabis legislation is adopted by individual states is what happens to those who were arrested for violating drug laws that have since been repealed? Some states—Colorado, Maryland, New Hampshire, and Oregon—have already taken substantial steps to ensure that these individuals have the freedom to expunge marijuana-related charges from their records. But California might be the next state to enact similar policies and allow individuals the freedom to overcome their past transgressions.

California Is Leading This Charge

When Californians voted in favor of adopting Proposition 64 in November 2016, they weren’t just voting to legalize recreational marijuana. Part of the ballot initiative also allowed individuals to petition the government to have past convictions expunged from their records.

Colorado may have beaten the Golden State to the punch on recreational use, but California has been leading the country in the charge to end marijuana prohibition since the late 1990s. In 1996, nearly 56 percent of California residents voted in favor of the Compassionate Care Act, which made medicinal marijuana legal across the state—a major milestone in the U.S. And just two years ago, California followed Colorado’s lead when over 57 percent of voters voted to make recreational marijuana legal as well.

The California State Senate passed a new bill that will lay the groundwork needed to help those with prior cannabis convictions.

On New Year’s Day 2018, cannabis dispensaries were finally permitted to open their doors to recreational users not only from within the state but from all over the country. So long as consumers had a valid ID proving that they were over the age of 21, they are now free to buy and consume recreational approved products. However, the new laws do not apply to every single cannabis product on the market. There are some higher-grade products that still require a doctor’s recommendation.

Even though it has been nearly a year since the new laws went into effect, it wasn’t until just last week that the California State Senate passed a new bill that will help lay the groundwork needed to help those with prior cannabis convictions begin the process of expungement.

A Case-by-Case Situation

If AB 1793 is signed by Governor Jerry Brown, the Justice Department will be required to sift through the state’s criminal records in search of individuals whose convictions are now eligible for expungement. It will also be tasked with identifying marijuana-related felonies, which, thanks to Proposition 64, should now be lessened to misdemeanors.

According to the Drug Policy Alliance, almost 500,000 Californians were arrested on cannabis-related charges between the years 2006 and 2015. However, the Justice Department estimates that around 218,000 convictions could be eligible for either expungement or a conviction downgrade under the new law. But it is going to take a fair amount of time for the state to sort out all the individual information.

The state will have until July 1, 2020, to review each case and determine which action should be taken.

Once all of the individual case information is compiled, county prosecutors from around the state will have until July 1, 2020, to review each and determine which action should be taken. And this is where the bill gets a little concerning. State prosecutors still have the authority to challenge the new state law if the individual in question “does not meet the eligibility requirements or presents an unreasonable risk to public safety,” according to the language written in the bill.

While it is unclear what constitutes being a “risk to public safety,” there is some concern that this will have negative implications for those who were found in possession of a firearm in addition to marijuana. It is not uncommon for those selling drugs to keep a gun. And whether or not you think selling cannabis is an admirable career path, arming yourself in this line of work is an essential safety measure.

Since federal laws have pushed this sector underground, it’s not as though “dealers” can just run someone’s debit card to collect payment. Even now in legal dispensaries, many banks still refuse to do business with the cannabis industry since prohibition is still in place on the federal level. But this means that many in this line of work often have large sums of cash, making them an easy target for theft.

Keeping a gun adds an extra level of insurance and protection. Of course, in California, where there are stricter gun laws than in other regions, a firearm conviction in addition to a marijuana-related charge may pose some problems when it comes to the possibility of wiping out past convictions. Even so, California’s efforts to, as state senator Scott Wiener put it, create “a simpler pathway for Californians to turn the page,” are absolutely admirable.

Undoing the Damage

Over the last decade, the country’s opinion about cannabis use has overwhelmingly been trending in a positive direction. A recent Pew Research poll found that 61 percent of Americans now favor the legalization of marijuana. And as more states are poised to begin peeling back layers of cannabis prohibition, at least to some degree, the issue of expungement is now more important than ever.

In Nevada, where recreational marijuana laws were passed a few years ago, Assemblyman William McCurdy stressed the importance of protecting those with prior convictions.

He said:

Since this is now the law of Nevada, it’s important that we allow folks who have made these mistakes in the past to have their records sealed up.

McCurdy comes from a poor area of Las Vegas where many people have been impacted by the drug war. Specifically, he has seen too many formerly convicted individuals struggle to overcome the permanent dark mark on their records. Since marijuana has traditionally been a felony charge in the United States, those who have done their time and reentered society find it exceedingly difficult to secure employment, especially if a job application requires them to label themselves as a felon.

It’s hard to overcome your past when you are labeled as a criminal even after your time has been served. But by enacting laws like California’s AB 1793, formerly incarcerated individuals have a chance to begin rebuilding a prosperous life for themselves and their families.

Every single one of us is an imperfect human being who is prone to error. But for the majority of us, these flaws do not critically impair our ability to earn a living. One mistake should not determine a person’s economic future, which is precisely why California’s new law is so encouraging.

In order to truly begin undoing the damage brought about by the drug war, our justice system needs an overhaul. And while it may be difficult to imagine such a dramatic change occurring on the federal level, the states have the power to make a dramatic impact. Hopefully, Governor Brown will sign this bill without delay and give formerly convicted individuals the opportunity to leave their convictions in the past and move on with their lives.

  • Brittany is a writer for the Pacific Legal Foundation. She is a co-host of “The Way The World Works,” a Tuttle Twins podcast for families.