Ex-cons can appeal to have their criminal records wiped clean, but the process can be convoluted and extremely expensive.
A California pot dispensary in 2009. Photo by David McNew/Getty Images
With the passage of Proposition 64 in November, Californians were finally free to enjoy recreational marijuana. For average stoners, this meant being free from the fiction that the weed they purchased was prescription medication. Minor offenses such as possession of less than an ounce of weed or possession of paraphernalia were completely decriminalized. More serious crimes, like selling or transporting weed, were reduced from felonies carrying lengthy prison sentences to mere misdemeanors.
But Prop 64 also created a path for nonviolent offenders—ex-cons, parolees, and current inmates—to petition state courts to modify or fully expunge their criminal records. That meant that these people could regain some of the civic privileges they lost due to their records such as serving on juries, obtaining a government job, or owning firearms. (Those serving time in prison can appeal for resentencing.)
"I could enjoy normal society again," said Michelle, a 33-year old woman who works in the entertainment industry in California. "I was no longer a pariah."
Michelle, who asked to not be identified by her full name, was convicted a felony marijuana cultivation charge in Los Angeles County in 2009. After learning of Prop 64's provisions shorty before it was approved by voters, she hired Margolin & Lawrence, a well known pot-centric law firm, to begin the process. Michelle successfully petitioned the court to drop the felony to a misdemeanor, then eventually the conviction altogether. The same court also dropped pending charges from another marijuana cultivation arrest in 2015.
"It's a chapter in my life that's now closed," Michelle said. "It was like a rebirth."
For pro-legalization groups like the nonprofit Drug Policy Alliance, the proposition represents an opportunity to give nonviolent offenders such as Michelle a hard-earned second chance.
"Prop. 64 is a step towards repairing some of the damages caused by the Draconian and punitive policies born out of the war on drugs," DPA policy coordinators Eunisses Hernandez and Cat Packer wrote in a January post on the organization's website. "By reducing and removing the criminal penalties for marijuana offenses, we are simultaneously reducing the barriers to employment and housing."
The DPA even devoted an entire section of its website, called My Prop 64, to helping potential petitioners through the reduction and re-sentencing process.
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That process is far from easy. Under the law, the onus to get marijuana convictions reduced or expunged falls entirely on the shoulders of those convicted. They have to obtain a copy of their records—which requires a visit to a courthouse—then fill out forms that can vary from county to county, then both file those forms with a court and send them to the correct district attorney.
The time it takes to fulfill these requests is unpredictable at best. According to attorney Richard Glen Boire of the California-based RGB Law Group, a firm that specializes in Prop 64 expungement and sentence reduction cases, how these cases progress can vary wildly.
"Some counties are fast (30 days), while other county courts can take three to four months," said Boire. "So factors really come down to the particular jurisdiction and the age of the case."
Michelle said her successful petition took several months and at least four court appearances. "It's a very lengthy process, even though it shouldn't take that long," she said.
The wait times aren't the only challenge for Prop 64 petitioners. The law's provisions are so new that even some judges aren't totally sure how they work. That uncertainty saddles petitioners or their attorneys (if they can afford them) with the additional challenge of instructing skeptical or hesitant judges on the finer points of the law.
"The toughest part of these cases is educating the judge," Boire said. "The burden of proof is on the prosecutor—not the petitioner. Some judges don't understand that, and it makes a huge difference."
The issue reared its head earlier this year in Fresno County. An unprepared court left several inmates and other petitioners in limbo because it wasn't able catch up with the changes in the law. Fresno County Superior Court officials didn't schedule hearings for those requesting resentencing or reclassification, citing uncertainty over the language of the proposition. The legal bottleneck left as many as 19 state prisoners and five county inmates in a frustrating legal purgatory.
Compounding the situation, many of the people who stand to benefit the most from the new law may not even be aware that they have the opportunity to take advantage of it. According to the Judicial Council of California, only 2,515 adults and juveniles filed petitions since the ballot measure was passed in November 2016.
"Lots of people are not aware of the reduction and expungement provisions, and think (Proposition 64) only applies to new cases," Boire said. "Also, some people who do know about the reduction and expungement provisions of Prop 64, think that they operate automatically. That is false."
There's also the matter of cost. Michelle said she spent about $25,000 getting her named cleared. While a petitioner without the cash for a lawyer could try and represent themselves, Michelle doubted that would have resulted in a successful petition in her case.
"I wouldn't have been able to do it without a lawyer," she said.
It is unsure how long the confusion over Prop 64's fine print will cloud California courtrooms. Until then, those who spent time behind bars for marijuana crimes in the state won't likely be celebrating alongside gleeful pot enthusiasts who've never faced the inside of a jail.
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