California's New Marijuana Law Is a First But Likely Not the Last

The unprecedented legislation implements an automatic statewide process to potentially reduce or dismiss sentences and records for crimes that are no longer illegal under state law. Other states are pursuing similar policies.
by | October 1, 2018
Marijuana joint in hand.
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California Gov. Jerry Brown has spent much of his last two terms making what he considers to be amends for the past.

The state has a history of tough-on-crime legislation, including a controversial "three-strikes" law. During his first round as governor, Brown signed a sentencing measure in 1976 that established fixed prison terms and contributed to a massive rise in the state's prison population -- from about 20,000 in the mid-1970s to 163,000 in 2006.

Brown has since acknowledged what he says were flaws with that approach, and he has signed a number of sweeping criminal justice reforms.

“The problems that I create, I can clean up,” he said in 2016 about the 1976 law.

In August, the Democratic governor signed a bill making California the first state to end its cash-bail system. On Sunday, California made history again by becoming the first to implement a statewide process to automatically review and potentially reduce or dismiss sentences and records for low-level marijuana offenses.

The crux of the new legislation is the idea that people should not be forced to bear long-term professional and financial consequences for crimes that are no longer illegal. California legalized marijuana use for adults and small amounts of possession with Proposition 64, which voters approved in 2016.

“If you’re denied pathways to opportunity when you’re in your teens, when you’re in your 20s, the compounded loss of economic potential by the time an individual hits their 40s or 50s is huge,” says Justin Strekal, political director for the National Organization for the Reform of Marijuana Laws.

Marijuana is legal for recreational use in nine states plus the District of Columbia. None of them automatically reconsider marijuana records statewide, and some don't even allow retroactive record relief.

But the push is growing.

In January, San Francisco announced it will retroactively dismiss thousands of marijuana-related misdemeanors and review felonies dating back to 1975. The next month, Seattle announced similar plans to vacate hundreds of marijuana convictions.

Even states without legal recreational use of the drug are taking steps to ease the burden that people with marijuana records carry.

In August, Delaware passed a law that permits people convicted of small amounts of possession or consumption prior to decriminalization in 2015 to apply for expungement if they have no other criminal convictions. Rhode Island passed a similar, wider-reaching law in July. North Dakota's legalization measure on this November's ballot, if passed, would create an automatic expungement system. And in New Jersey, where the legislature is weighing legalization, automatic expungement legislation has been introduced.

California's new law builds off Prop. 64, which also permitted the reduction of sentences and expungement of records for marijuana convictions. But that system relied on people with convictions to petition the court themselves. The Drug Policy Alliance estimates that nearly 1 million people qualify to have their records reclassified or cleared by Prop. 64, but fewer than 6,000 people petitioned for it between November 2016 and March 2018.

“For everyone to have to go back to court on their own is really laborious," says Michael Romano, director of the Three Strikes and Justice Advocacy Projects at Stanford Law School.

For many, the expungement process can be expensive or overly complicated, says Kate Bell, general counsel for the Marijuana Policy Project.

“The individuals who will benefit the most from expungement are those that will have the most difficulty navigating the process and paying the requisite fees — if they are even aware the opportunity is available,” says Bell.

California's new law requires the state Department of Justice to identify cases “potentially eligible for recall or dismissal of sentence, dismissal and sealing, or redesignation” before July 2019. The prosecution then has until July 2020 to challenge any cases it feels should not be reduced or dismissed.

Charges associated with possession of small amounts of marijuana can be dismissed, while felonies, like sale without a license, can be reclassified as misdemeanors. About 218,000 cases could be eligible, according to the office of Assemblyman Rob Bonta, the Democrat who introduced the bill.

The California law is a victory for criminal justice advocates -- many of whom hope the law will become a blueprint for reshaping the approach to crimes beyond marijuana.

"This [law] is a pretty specific slice. It's these types of convictions and it's with this one government agency," says Lenore Anderson of Californians for Safety and Justice. "But it opens up the door for additional things that could be automated."