As calls for criminal justice reform sweep the nation, California is taking steps to reverse some effects of the war on drugs, which continues to disproportionately impact people of color.
California’s 58 county district attorneys had a deadline of Wednesday, July 1, to accept or challenge the state’s recommendation to clear the records of some 191,090 past marijuana convictions. The procedure was triggered by Proposition 64, a 2016 measure that legalized cannabis and reduced penalties for related crimes, and by Assembly Bill 1793, which requires justice officials to purge eligible crimes from people’s records.
Because local prosecutors agreed with the vast majority of the state’s recommendations, tens of thousands of Californians are now free of criminal records for cannabis charges. In many cases, the charges for the cases in question are no longer crimes, but the criminal records still could have meant lost job or housing opportunities or, for immigrants, led to their deportation.
“I think there’s been recognition by a lot of people that we needed to change things,” said Christopher Gardner, public defender for San Bernardino County.
Southern California DAs alone moved to dismiss or downgrade more than 100,000 marijuana charges as the July 1 deadline approached. In some cases, they found even more eligible cases than those flagged by the state. Riverside County, for example, recently adjusted 26,424 cannabis convictions — nearly four times more than the number identified by California Attorney General Xavier Becerra.
Prosecutors in Riverside and San Bernardino counties didn’t challenge any of the state-flagged cases, asking the court instead to reduce or dismiss them en masse.
“They just wanted to process them and comply,” said Gardner, who praised the San Bernardino County DA’s cooperation in processing roughly 5,400 cases. “I think it’s a good sign that they recognized what’s important to fight.”
Prosecutors in Los Angeles and Orange counties didn’t go as far. Together, the two counties challenged more than 2,000 cannabis convictions that Becerra flagged as potentially eligible for resentencing, saying the cases don’t qualify due to each person’s prior convictions.
The Los Angeles County DA also says another 2,304 people identified by the state as potentially having their marijuana-related charges cleared also don’t qualify for relief under California’s cannabis laws.
So, while defendant and marijuana rights advocates are applauding a process that resulted in tens of thousands of downgraded cases, they say more work remains.
“Drug-related offenses have consequences that are sometimes far more severe than other convictions — immigration being one of them,” said Nick Stewart-Oaten, an attorney with the Los Angeles County Public Defender’s Office.
“That’s why it’s incredibly important for everyone who has a chance to get his record cleaned up to get it cleaned up.”
New laws spur change
The door for clearing marijuana convictions opened in November 2016, when California voters approved Prop. 64.
Along with legalizing recreational marijuana, the bill retroactively reduced the penalties for just about every crime involving the drug. Selling marijuana without a license, for example, was downgraded from a felony to a misdemeanor. And the measure eliminated all cannabis-related criminal penalties for people who were under 18.
Since Prop. 64’s passage, people have been allowed to petition the courts to have their old marijuana charges downgraded or cleared. But since the law left that challenging burden up to the convicted, not many cases were put up for review. Last year, the nonprofit Code for America estimated that just 3% of people eligible for relief under Prop. 64 had received it.
People of color figure to be hurt the most. Though minorities and whites have used weed at roughly the same rates over the years, Drug Policy Alliance data shows that non-whites have been much more likely to be arrested and prosecuted for marijuana-related crimes. And recent research shows those discriminatory patterns continue even after cannabis legalization.
Given those realities, some counties decided to proactively track down and process all marijuana cases eligible for expungement. San Francisco District Attorney George Gascón started the trend in January 2018, and prosecutors in San Diego, Alameda, Sonoma, Yolo, Los Angeles, Sacramento and San Joaquin counties have since followed suit.
That movement spread statewide in September, when the legislature approved Assembly Bill 1793. The law gave the state Attorney General’s office until July 1, 2019 to identify all potentially eligible cases and send those 191,090 cases to counties for review. And AB 1793 then gave local prosecutors until July 1, 2020 to review cases passed down from the state and notify local public defenders if they opposed downgrading any charges.
Challenges emergeThe Los Angeles County District Attorney’s Office is challenging 2,142 convictions flagged by the state. Agency spokesman Greg Risling said Thursday that they believe those cases are ineligible due to prior convictions for sex offender registration, violent or serious felonies, or two or more convictions for the same offense as the case in question.
The Orange County DA challenged some 270 cases, citing similar issues.
Those people are essentially back to where all Californians were before AB 1793. If they want to fight the DA’s stance on their case, they’ll need to contact their public defender or another attorney and challenge it in court.
Same goes for the nearly 10,000 people that Becerra identified as potentially having marijuana-related cases, since they were arrested for marijuana possession, cultivation, sales or transportation but convicted of, say, “accessory after the fact to a felony.”
While many of those 10,000 flagged cases may not be eligible for relief under the state’s new marijuana laws, Stewart-Oaten said those who are would perhaps be the most deserving, since historically — and often when the prosecution’s evidence is weakest — defendants who were arrested for marijuana-related crimes sometimes plead guilty to lesser charges that don’t involve cannabis.
That’s why the public defender’s office has been pushing the LA County DA to hand over its list of 2,304 potentially eligible cases for review. Stewart-Oaten said he’s confident they’ll get those cases soon. Still, he said it’s up to people with these charges on their record to find out the status of their cases and get help if they need to fight charges.
The process isn’t over for all of the people connected to these cases. After DAs approve downgrading or dismissing cannabis convictions, the change can take some time to show up in court records. Stewart-Oaten said they’ve had clients spend time in jail even after cannabis charges had been dropped from their records because the system hadn’t updated and it triggered a bench warrant for failure to appear in court.
There aren’t hard deadlines for when challenged cases must be resolved or when courts have to process any changes. The process could be extended because of court closures during the coronavirus pandemic.
That’s why some cannabis rights advocates are pushing for more transparency in how the judicial system is handling these cases. If counties aren’t following the letter of the law, advocates might mount a court challenge.
“We have always seen marijuana reform as part of the greater social justice movement,” said Ellen Komp, who works with the California chapter of the marijuana advocacy group NORML.
“It’s a wonderful time to really address the racial justice issues our whole country is looking at so strongly as we fight for the soul of our country.”