With so much uncertainty hanging over an election marred by intense polarization and partisanship, one thing is clear: legalizing marijuana is an issue with broad, bipartisan support. Ballot initiatives to legalize marijuana for adult or medical use passed overwhelmingly in five states on Tuesday bringing the total number of states with adult-use legalization laws to 15, and legal medical marijuana states to 36.
But not all legalization measures are created equal. Only two of the night’s successful initiatives included provisions that would provide for retroactive relief for those still suffering from the criminalization of cannabis.
Arizona may have seen the biggest shift in the way the state classifies cannabis offenses. Currently, Arizona is the only state where first-time possession of any amount of marijuana is considered a felony offense. The newly passed Proposition 207 not only amends criminal penalties for marijuana possession and creates a regulated market for legal sales, but also creates a mechanism for the expungement of prior, low-level cannabis offenses.
The inclusion of any kind of retroactive relief in Arizona — where hundreds of thousands of lives have been impacted by prohibitionist laws which disproportionately impact the state’s communities of color (Hispanic people in the state are sentenced to significantly longer jail and prisons sentences than their white counterparts and on average, Black people are three times more likely to be arrested for marijuana possession than white people) — is a big win.
Similarly in Montana, where racial disparities in marijuana arrests are the highest in the nation, the successfully passed Initiative 190 allows an individual currently serving a sentence for a prior low-level marijuana offense to apply for resentencing or an expungement of the conviction. This is the only ballot measure or piece of legislation to provide for resentencing for those currently serving a marijuana sentence since the passage of California’s Prop. 64.
These provisions, though, are just the starting point for repairing the past harms of prohibition. We know that resentencing and expungement laws that are petition-based, as both of these measures are, are susceptible to an “uptake gap” which occurs when individuals are forced to navigate a complex and expensive legal process in order to clear their records. Petitioning the state is a complicated, expensive, and time-consuming process, doubly-so for those without formal legal training and/or the resources to engage an attorney.
The data shows that when expungement is not automatic, only a small fraction of eligible individuals receive them. In Denver for instance, where cannabis has been legal since 2012, less than 1% of all individuals eligible for the state’s expungement law have successfully vacated their convictions, a trend which is consistent across the country.
Beyond the barriers to accessing these petition-based laws, the class of offenses which are eligible for either expungement or resentencing are incredibly narrow in scope. These retroactive relief measures are limited to possession of two and one-half ounces or less and cultivating no more than six cannabis plants for personal use in Arizona, and one ounce or less and up to four plants in Montana. The provisions as drafted are silent as to charges which often accompany cannabis-related offenses such as conspiracy, money-laundering, and possession with intent to distribute. Nor do they contemplate an individual who may have been originally convicted on a marijuana-related offense but who ultimately pled to a different, potentially lesser offense.
Despite the limitations of these initiatives and the work that still needs to be done to ensure that any state which is set to legalize in the upcoming year is also providing relief for those still suffering under unjust marijuana laws, the passage of these initiatives, along with broader drug reform measures like Oregon’s Measure 110 which decriminalized all drugs for personal use and possession, are undoubtedly signs of monumental progress for criminal justice and drug policy reform across the country, signaling the imminent demise of the failed war on drugs.
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