The Background
Without fanfare, California Governor Jerry Brown signed a revolutionary bill into law -- taking a crucial step towards reparative justice for people who were convicted of cannabis related crimes during prohibition. Passed in August 2018, AB 1793 provides a process for the “resentencing and destruction of records for prior marijuana convictions,” as mandated in Prop 64 (the bill that legalized recreational marijuana for persons aged 21 years or older).
Under AB 1793, the Department of Justice must search state criminal histories for any cases eligible for review and resentencing under Prop 64. That eligible case is then passed along to the district attorney who initially prosecuted it. Those district attorneys then have until July 1, 2020 to challenge any case that they believe should be ineligible for a downgraded conviction.
The bill has proven to be a crucial step forward in the process of not only legalizing, but decriminalizing recreational marijuana use. By offering a framework through which to execute the provisions of Prop 64, the state can begin to retroactively atone for its high incarceral rates for people convicted of “crimes” that we all agree should now be legal. Although this is a far cry from reparations, it is a step in the right direction.
The people who dared to dabble in the marijuana industry while prohibition was still absolute law, were convicted as part of America’s (ongoing) “War On Drugs.” Shockingly, the laws disproportionately targeted people of color --77% of arrests in Oakland for marijuana related crimes in 2015 were black men.
Although Prop 64 called for the immediate release of those incarcerated for marijuana-related crimes, it provided no framework to execute the redressing of criminal records, and subsequent consequences for not following through. People who had been convicted of crimes that were now no longer crimes had the generous “option” of going through the costly and lengthy process of record review. But of the over one million Californians eligible, only 4,500 people applied for this process as of 2017, according to the California Judicial Council.
Local community leaders began initiatives within their own communities to “expunge” records—a catch-all term used to describe the process of criminal record review—which would then (depending on the charge) reduce felonies to misdemeanors, reduce misdemeanors to infractions, and seal criminal records. San Francisco district attorney George Gascon was shocked that over a year after proposition 64 passed, of the thousands of people eligible for record review in his district, only 23 of them had applied for relief. In response, he initiated the most prominent example of this type of program, which now serves as a model for the rest of the state. In December of 2017 he began unilaterally sealing records and reducing charges, announcing thousands of dismissals for convictions dating back as far as 1975.
This kind of expungement initiative was, however, only available to people in hyper-liberal urban areas. As deputy director of non-profit Root and Rebound Sonja Tonnesen points out: “There are very different political ideologies around drug convictions and that kind of prosecutorial work in our state.” Those differences in ideology between counties (on marijuana and other drug reform) are made apparent by the fact that 73% of California cities and counties have banned commercial cannabis businesses altogether.
Although AB 1793 offers a cost and effort effective solution for Californians with marijuana convictions, the process is still quite lengthy, and they likely will have to wait until 2020 to experience any reduction. That has immediate consequences, as Tonnesen explained: “People’s [carceral] system involvement affects their family life, their housing rights, employment, and their ability to get occupational licenses to work in career fields that provide a living wage.” She added that “Obtaining Just basic ID, the right to vote, all these aspects of civil life are affected when you’ve been systems-involved.”
All of this collateral damage from past marijuana charges create a second class of citizenship in California, that ostensibly should be eradicated now that the plant is legal.
The good news is that there’s a way to expedite the process if you have been convicted of a cannabis-related felony, misdemeanor or infraction between January 1, 1976 and 2016, when Prop 64 was passed. Although the system may feel impossible to navigate, and there are no clear processes for notification on whether or not your charges have been reduced, there are ways to go about it that maybe won’t drive you completely insane
What You Can Do
The first thing you have to do to begin the expungement process, is obtain a copy of your rap sheet. Depending on the county, there are a couple different ways to go about getting a record of all your past convictions that’s held by the Department of Justice. But no matter what, you must get your record from the district attorney’s office or courthouse in the county you were convicted in. (It’s trash for being so inconvenient, we know.)
If you can’t travel to the county you were convicted in, try speaking directly with a clerk at the local criminal court. They can usually print out a copy of your record by contacting the Department of Justice from the appropriate county, and requesting it (this request traditionally comes with a fee), or by reaching out directly to the local district attorney’s office. “Going to the local criminal court where the convictions came out of is impossible for some people because they have convictions in different counties and it’s just not feasible for the transportation reasons and the hours that the courts are open,” Sonja warns, continuing “Court clerks will often provide that information over the phone because it is public record.”
Once you have a copy of your charges, you can then file a petition with the court requesting a change in your record. Rodney Holcombe, a staff attorney for the Drug Policy Alliance, emphasizes that “if they submit their own petition, they’re going to be prioritized.” This is where the process becomes nearly impossible to navigate without a lawyer. If you have the means to hire a lawyer, they will go through this process with you, but if you do not, there are still options for you to continue on your own.
Organizations like Root and Rebound, the Drug Policy Alliance, and One Justice (among others) offer legal clinics to help people across the state with record cleaning. If you live in an urban area with access state-funded legal clinics, they can also help guide you through the process to get your record cleared before the 2020 deadline. Root and Rebound offers mobile legal clinics multiple times a year specifically targeted at rural areas and tribal communities where local governments are particularly unequipped to help an unrepresented person navigate the complicated process.
Still with me? Okay, next,you have to provide notice that you served your petition to the district attorney; you’re then actually considered a party to that petition. The district attorney then has an opportunity to respond, and file a response with the court. Some counties will have a hearing on it, but most will not. The judge will ultimately make a decision based on the information provided, the person’s eligibility, and circumstances.
The circumstances under which the judge or district attorney would advise against granting a reduction or expungement can vary. According to Rodney, the most likely reasons would be: If someone committed a code violation more than three times, if their crimes involved a person under a certain age, or if the crime involved cultivation violations of the environmental code. He warns that the DA might push back and call a hearing, but assures that even in the case of a hearing they tend to grant the record change more than they deny it.
Although this is the basic framework for expediting the record review process, it can vary from person to person and charge to charge. Sonja explains: “There are some types of record change and dismissal work where you have to provide more information, and other times it’s just an automatic process where if you have eligibility the judge is going to approve it. Other times you have to explain about why you’re deserving of a record change.”
Where Do We Go From Here?
Because the system has barely begun to automate the expungement process, advocates at organizations like Root and Rebound and the Drug Policy Alliance encourage the 218,000 plus people eligible for record review to fully utilize the avenues provided by local and state governments, despite their narrowness.. AB 1793 at least provides a basic framework to ensure that everyone’s criminal records receive consideration eventually, but it fails to provide a system by which to notify people of their record changes, which could... prove troublesome. For now, contacting a non-profit organization for aid can potentially expedite the process. There are still ways that a changed record could impact your life—even for a misdemeanor or an infraction there could still be collateral consequences for rights to employment, for housing, to where it’s showing up for those seeking public benefit rates Sonja explains, emphasizing the need to check on the status of your record.
This long and needless War on Drugs has consequences long after a sentence is served, or record is expunged. Once a record is changed, it’s still a long road back to normalcy. Luckily, there are organizations aimed at helping with re-entry; the equity cannabis permit program in Oakland attempts to offer reparations in the form of priority permits to get involved in the newly legal marijuana space.
Sonja also spoke about helping people in rural areas get their gun rights restored once their cannabis felony convictions are reduced, but some are not so confident that’s possible. Seasoned marijuana lawyer Bruce Margolin expressed his skepticism, warning that he doesn’t think the federal government in charge of the database responsible for informing gun retailers of felons is going to recognize California’s law.
Despite the usual misgivings, there are plenty of reasons to remain optimistic about the offerings for people freed by AB 1793 and/or who need guidance in re-entering civilian life without the burden of a criminal record. These organizations can match people up with job training opportunities, help a person to get their license––even help people register to vote. Rodney also points out that often, places that host these clean slate legal clinics will try to bring in some resource providers to offer these reentry services so it’s more of a “one stop shop.”
For more information on the record expungement process for crimes beyond those addressed by AB 1793 you can visit the Department of Justice’s website. To request legal aid or more information about the Root and Rebound offerings you can email them directly at [email protected], or call their legal hotline which is staffed by attorneys every Friday from 9am - 5pm at (510) 279-4662.