Righting the Wrongs of Past Marijuana Convictions

In some states, marijuana used to land you in jail; now it can land you on the Forbes list. Even though states across the country are decriminalizing marijuana and instituting their own medicinal and recreational cannabis programs, hundreds of thousands of nonviolent people – mostly black people – still currently sit behind bars or suffer other consequences of their criminal records for marijuana possession convictions, such as the inability to obtain stable housing, credit, jobs, or an education. Some states and local jurisdictions are stepping up to the plate, taking, as Seattle Mayor Jenny Durkan put it, “small step[s] to right the injustices of a drug war that has primarily targeted people of color.”

      I.  Seattle’s Move Toward Criminal Justice Reform

Last Friday, April 27, 2018, Seattle’s City Attorney Pete Holmes filed a motion in Municipal Court requesting the Court vacate all convictions and dismiss misdemeanor marijuana possession convictions that were rendered between 1997 and 2010, a period of time prior to recreational legalization in Washington State. Should the Court grant the motion, more than 500 individuals are expected to be affected by the move by having their past convictions wiped from their records.

Holmes called the motion “one small step to right the injustices of a drug war that has primarily targeted people of color.” Seattle Mayor Jenny Durkan explained at a press conference earlier in the month, “Vacating charges for misdemeanor marijuana possession is a necessary step to correct the injustices of what was a failed war on drugs, which disproportionately affected communities of color in Seattle.” City officials selected convictions during these dates in their motion to vacate and dismiss because in 1997, the City of Seattle took responsibility over for misdemeanor marijuana prosecutions from King County prosecutors; in 2010, the City – as a matter of policy – ceased such prosecutions.

Even though Washington voters approved a statewide legal recreational cannabis program in 2012, more than five years later, hundreds of people in the state – if not thousands – still currently sit behind bars or suffer other consequences of their criminal records for past marijuana possession and other marijuana-related convictions; that is, for engaging in activities that are now legally generating millions of dollars for industry participants. Prior to 2012, a grower or seller of marijuana faced harsh criminal penalties including significant fines and jail time. However, for the past five years, the same activity – now regulated – not only avoids criminal prosecution, but also garners millions of dollars for licensed industry participants.

      II.  Disproportionate Enforcement and Communities of Color

Communities of color bear the burden of disproportionate marijuana enforcement policies across the country, and even a progressive city like Seattle is no exception. Setting aside and dismissing such convictions would be a step in the right direction, but Seattle acknowledges such action “cannot reverse all the harm that was done, [but] we must do our part,” according to Mayor Durkan at the press conference.

While legalization of cannabis offers hope to right many of the wrongs caused by misguided, costly, and ineffective drug laws and policies at work over the last several decades, research shows that African American citizens are still disproportionately targeted for arrest and prosecution for marijuana related crimes, even in states boasting robust regulatory systems, such as Washington.

Historically, between 2001 and 2010, police in communities across the United States made over 8 million arrests for marijuana-related crimes, 88% of which were for possession alone. During those same years, marijuana related arrests increased as well, accounting for over half of all drug arrests in the country – which means that marijuana possession arrests account for nearly half (46%) of all drug arrests in the country. According to a 2013 report titled The War on Marijuana In Black and White by the ACLU, in 2010 – two years following medical marijuana legalization in Washington State, and two years prior to the passage of i502 – “there was one marijuana arrest every 37 seconds, and states spent combined over $3.6 billion enforcing marijuana possession laws.”

The report also found white and black Americans use marijuana at similar rates, but that a black person is far more likely to be arrested for marijuana possession than his or her white counterpart. On average, in 2010 a black person was nearly four times more likely to be arrested for marijuana possession than a white person engaged in the same activity in the same location. In the states with the worst disparities, these glaring racial injustices increase to render a black person 10, 15, or even 30 times more likely to be arrested than a white resident of the same county. Not only that, but the trend seemed to be worsening: the disparity increased 32.7% between 2001 and 2010. This means that black people were not only targeted for arrest and prosecution for marijuana related crimes at far higher rates than white people, but that even more black people and even less white people were being arrested for the same crime over time. 

Such disproportionate enforcement not only makes black people more likely to be arrested, but also more likely to be convicted and thus suffer punishment for and criminal records as a result of such now-legal conduct. Small-time marijuana convictions unfairly prevent people from obtaining stable housing, credit, jobs, and education, as well as puts them at risk for deportation, termination of their parental rights, and more. Additionally, the statistically true “perception among many persons that enforcement of drug laws discriminates against African Americans has profound adverse effects on their cooperation with law enforcement, respect for the law, and participation in the court system,” as City Attorney Holmes wrote in his motion to the Court filed Friday.

Despite the trend toward legalization across the country, as well as public support of cannabis legalization recently reaching a record high of 63% according to a Quinnipiac University study released in April, African Americans are still arrested at disproportionately high rates for marijuana possession. On the one hand, the numbers suggest that legalization is accomplishing its goal of reducing the impact of drug arrests on minority communities by sending fewer people of color to jail and prison for marijuana offenses while, on the other hand, the racial disparities in enforcement remain the same. One thing is clear, more than marijuana reform is needed to resolve the issue of persistent, disproportionate, racist enforcement of drug laws across the U.S.

      III.  Disproportionate Enforcement and Immigrants

African Americans are not the only citizens who are targeted for discriminatory drug enforcement and punishment policies. According to the Seattle Times, approximately 20% of King County residents are foreign-born, and the immigration rights of at least some citizens are likely to be impacted by the Court’s decision. Holmes planned to file the motion earlier this month, but pushed back the timeline for filing in order to craft additional arguments alongside the defense bar and immigration advocates “to do what we can do to make these vacations effective under federal immigration law,” according to Deputy City Attorney John Schochet.

Generally, under state law, if the Court grants a motion to vacate a conviction, the Court will set aside the verdict – meaning, the Court will treat the defendant as if the first verdict never happened. The case will then be sent back to the prosecutor’s office, who will decide whether or not to pursue the charges against you again. Dismissal of a case means the prosecutor drops the criminal code violation charged against you, and (most) charges are treated as if they never occurred.

However, a 1996 federal law allows immigration courts to define a “conviction” more broadly than state courts, which can cause significant consequences for “offenders,” including deportation and preventing immigrants from obtaining U.S. citizenship, even though they may be vindicated under state law. Under federal immigration law, to render a marijuana conviction moot and irrelevant to its consideration, a court would have to determine that the original charges never had a valid basis – even prior to the legalization of marijuana – an argument virtually impossible to successfully make, particularly in the current legal and political climate surrounding cannabis.

      IV.  No Future for Cannabis-Related Criminal Convictions

This recent move by Seattle officials follows in the footsteps of the District Attorney in Philadelphia, Larry Krasner. In 2014, Philadelphia police began issuing citations for marijuana possession instead of subjecting citizens to arrest; but in February, Krasner dropped misdemeanor marijuana possession charges against 51 people and announced that his office would no longer pursue such charges. “I did it because I felt it was the right thing to do,” he explained. “We could use those resources to solve homicides.”

Colorado’s Governor and cannabis legalization pioneer, John Hickenlooper, said in February that he, too, is currently reviewing approximately 40 cases of nonviolent marijuana criminal convictions and looking into the proper legal relief to “get these people out of jail,” though it is unclear if he is considering the same vacate-and-dismiss vehicle used by Seattle officials. Colorado already allows people convicted of misdemeanor marijuana possession during a certain period of time to petition to have their convictions sealed, like several other states, like Maryland, a process which has been criticized as costly and time consuming, making it difficult for low income people to obtain relief. “This country spends $80 billion a year [on] incarceration,” Hickenlooper said about his decision to review more marijuana-related cases and consider alternatives. “This is maybe an example of a place where we can take some of the people that have been locked up and get them out in short order, get them back hopefully out […] getting a job and contributing to society.”

Those with convictions in California may also find relief soon, if not already. The ballot measure approved by voters expressly empowered individuals with marijuana convictions to have the charges wiped, in the case of misdemeanor convictions, or reduced, in the case of felonies.

“California voters have clearly sent a message,” San Francisco District Attorney George Gascón said. “The war on drugs has been a failure, and more specifically, the war on marijuana has been a failure.” His office announced in January that it will actively begin to “clear all marijuana misdemeanor convictions dating to 1975 and review all felony convictions to see if they are eligible for a reduction.”

Unlike the action taken in states like Colorado and Maryland, which offers partial relief (sealing of records, expungement) to people with misdemeanor criminal convictions for marijuana-related crimes only if they are able to successfully petition the court (which almost always requires an attorney), Gascón said he made the decision to automatically clear records so that citizens “will not have to jump through hoops to get relief.” His action alone, affecting only convictions rendered by the San Francisco District Attorney’s Office, is expected to vacate approximately 3,000 misdemeanor convictions, and an additional 5,000 felonies will be eligible for review for reduction.

Back in Seattle, persons convicted of felony marijuana offenses may never receive as much justice as those guilty of the same offenses just a few states over. In Seattle, felony marijuana convictions are still handled by the King County Prosecutor’s Office (as opposed to the City Attorney’s office, headed by Mr. Holmes, which handles misdemeanors), run by Prosecutor Dan Satterberg. Satterberg says he is sympathetic to these hardships, but that his office simply doesn’t have the resources to take it upon itself to investigate and vacate or reduce old convictions. However, he expressed a willingness to take on such a project with political and financial support: “If a case is more than three years old, we have to go to the warehouse where we hold our old files, pull them out, and figure out if the felony was a $10 sale or a 1,000-plant grow house,” Satterberg said. “If the county wanted to make this a priority and devote some resources to it, it could be done.”

With respect to the misdemeanor convictions addressed in the motion filed Friday, Mayor Durkan acknowledges that clearing such convictions is a necessary, though insufficient, step toward undoing the wrongs the drug war had on minority communities. City Attorney Holmes hopes the court will grant his motion and “promote the interests of fairness and judgment.” If it does, the City hopes to set up a website for individuals convicted of misdemeanor marijuana possession to research their case and the status of their conviction. For those with felony convictions, Satterburg recommends that anyone who believes they have a low-level King County marijuana conviction to contact his office for assistance in having it erased.

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