CA District Attorneys Debate Clearing Pot Convictions

When Proposition 64 passed in November 2016, hundreds of thousands of people got the opportunity to clear their criminal records of marijuana convictions. But clearing those records hasn’t been easy — and while cities like San Francisco are moving to proactively tackle the database, cities such as Los Angeles are holding back and saying individuals have to take control of their own case.

One California District Attorney in San Francisco has made a move that could help the criminal records of thousands disappear or be reduced to misdemeanors, thanks to the Adult Use of Marijuana Act. DA George Gascón has stated that the city will retroactively expunge or reduce misdemeanor and felony convictions dating back over 40 years, according to The San Francisco Chronicle.

Under this new policy, San Francisco alone could see more than 3,000 misdemeanors dismissed and sealed, going back to 1975. Gascón also said prosecutors will review nearly 5,000 felony cases for possible resentencing. The process of clearing all the misdemeanors is currently underway, but due to the case-by-case basis of the felony convictions, those are going to take a bit longer.

“Instead of waiting for people to petition — for the community to come out — we have decided that we will do so ourselves,” Gascón told the Chronicle. “We believe it is the right thing to do. We believe it is the just thing to do.”

Previously, people who wanted to clean up their records had to take part in a lengthy process that required time and money, which often proved difficult for people from lower-income communities that have been the most impacted by the War on Drugs. Despite the fact that Prop 64 applied retroactively to hundreds of thousands of cases, the vast majority of those people still live with a conviction hanging over their head because they haven’t gone through the necessary legal channels to expunge the records. While many California cities have been hosting free expungement clinics, the Associated Press reported that fewer than 5,000 people have actually jumped through all the hoops required to clean their record

In San Francisco, Gascón’s office is expecting that a lot of clerical work to go with the effort and he’ll assign extra hands as needed. “We’re hoping what we are doing here will not only benefit San Francisco,” he told the Chronicle.

“We’re hoping other elected officials around the state will say this is the right thing to do,” said Gascón.

While the district attorney in San Diego also announced that they would be working to overturn cannabis convictions, many district attorneys across the state said it just was too difficult to take the initiative themselves. In Mendocino, Sonoma and Sacramento County, district attorneys said that they didn’t have the resources to comb back through records.

Most notably, in Los Angeles, District Attorney Jackie Lacey released a statement on Feb. 2 that declared the office would need individuals to file their own expungement efforts. Lacey said that Los Angeles County has had an estimated 40,000 felony convictions involving since 1993.

In light of the difficulties for district attorneys to clear each record on a case-by-case basis, some advocates are calling for automatic records clearing. Cal NORML Deputy Director Ellen Komp says somewhere between 100,000 and 1 million Californians should qualify for automatic expungement or resentencing.

“The overwhelming majority of the misdemeanors were for possession of an ounce or less from before 2011, when the penalty dropped to an infraction,” Komp told Cannabis Now. “These were supposed to be automatically expunged from people’s records two years after conviction, but in many cases, Cal NORML legal committee attorneys have found this didn’t happen.”

Komp believes the trick will be figuring out how to force or fund the courts to research the cases and clear the records more widely, and not just in San Francisco and San Diego.

“We applaud Gascón’s move, and in places with a liberal [district attorney], this could work; however in places without one, [district attorneys] either won’t review them or could deny them,” said Komp. “There was language in Prop. 64 saying ‘the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety’ and that is subject to interpretation.”

Komp went on to note California State Assemblymember Rob Bonta deserves credit for getting the ball rolling on this, after a constituent brought up the issue at a public forum. Bonta recently introduced a bill, AB 1793, that aims to automatically eliminate past marijuana convictions in California.

TELL US, do you have a cannabis crime on your record that you need help clearing?