While the U.S. Dept. of Justice has never, and most likely never will support marijuana, the legalization of recreational cannabis use in eight states (Col., Washington, Ore., Calif., Nev., Alaska, Maine, and Mass), may soon force the DOJ to change their outlook.
With state cannabis laws at odds with federal marijuana prohibition, many states continue to seek federal guidance on issues of enforcement.
In 2013, former US Attorney General James M. Cole issued a memorandum to all US attorneys providing guidance on the prioritization of law enforcement and prosecution as it related to state-legal cannabis operations. The “Cole Memo,” as it came it be called, stated that the DOJ should focus on preventing a number of things, including the distribution of marijuana to minors and revenues reaching the hands of criminal enterprises.
Following the guidance of the Cole Memo, arrests and court filings for prosecuting citizens for the possession, cultivation, and distribution decreased considerably. Additionally, federal cannabis prosecutions declined in states with legal cannabis-use by adults. The decline in arrests in states where recreational adult-cannabis use is legal helped save those particular states millions of dollars and prevented the criminalization of countless people.
And then along came Jeff Sessions
But at the start of the year, Attorney General Jeff Sessions announced that the Department would no longer follow the Obama-era policy known as the “Cole Memo.” The announcement threw the legal cannabis industry into a state of flux, sending marijuana stock prices falling and putting states into an utter state of confusion over how to proceed.
With the legalization of recreational cannabis-use throughout the United States, those left with criminal records may be left wondering: what now?
Utilizing California’s Proposition 64 as legal precedent, several major cities are discussing nullifying or reducing criminal charges for marijuana possession, including Seattle and San Francisco.
Prop 64 allows that persons convicted of specific marijuana offenses which were previously ruled as felonies may petition the court to have their felonies re-sentenced as misdemeanors. In accordance with the proposition Section 11361.5 of the California Health and Safety Code (HS), the former felonies that can be reduced to misdemeanors are:
§11360 HS Sales of Marijuana
§11359 HS Possession for Sales of Marijuana
§11358 HS Cultivation of Marijuana
Petitions may be made to the Court and the California DOJ to request that records pertaining to these HS Codes be destroyed. California HS Codes defines personal possession as less than one ounce of marijuana (28.5 grams) as well as concentrated cannabis and possession of more than one ounce if treated as a misdemeanor.
How is this being implemented?
Prior to the Evergreen State legalizing recreational marijuana use in 2012, marijuana possession arrests were at an all-time high. From 4,000 arrests in 1986 to 11,000 arrests in 2012, Washington had arrested a total of 240,000 for possession during this 25-year period.
Seattle is attempting to provide retroactive relief to people with marijuana convictions; however, providing lasting relief to people with marijuana felonies on their records would require state legislative action.
In February, Seattle Mayor Jenny Durkan and City Attorney Pete Holmes announced that the city would be nullifying all misdemeanor convictions for marijuana possession in the years before legalization. This announcement came one week after a similar statement from San Francisco’s District Attorney.
“Seattle is doing the right thing,” said Jolene Forman, staff attorney for the Drug Policy Alliance in a statement. “It is important that states considering legalizing marijuana, as well as states that already have legalized, they acknowledge the past harms of the unequal enforcement of marijuana laws, and work to repair them. Repairing the harms of marijuana criminalization, especially in communities of color that have been hit the hardest by our destructive drug laws, is an essential piece of properly implementing marijuana legalization.
San Francisco District Attorney George Gascón announced that his office will dismiss nearly 3,000 misdemeanor cases and will review a further 5,000 felony cases for possible action. They will examine cases from 1975 through the passage of Prop 64 in 2016.
California remains the only state thus far to include a retroactive record clearing provision in their marijuana legalization Proposition.
Additionally, State Assemblymember Rob Bonta (D-Oakland), introduced legislation which would require the state DOJ to review the records in the state summary criminal history information database to identify past convictions that are potentially eligible for recall or dismissal of sentence, dismissal, and sealing, or redesignation pursuant to AUMA.
This bill, AB 1793 Cannabis Convictions: Resentencing, is currently enrolled and awaiting Governor Brown’s signature. If signed or passed into legislation, the DOJ would have to review all cases and determine whether to challenge the resentencing, dismissal and sealing or redesignation if the person doesn’t meet the eligibility requirements or presents a risk to public safety.
September 30 is the deadline for Governor Brown to sign or veto any bills that were passed by the Legislature.
Those with possession records in California may begin to breathe a sigh of relief, but the road to a clean record will be a long one. Nearly 5,000 people have applied for a change to their records, and that is only a fraction of the people that estimates state are eligible.
Calif. and Washington are not the only states to be looking into retroactive record clearing. The Oreg. legislature passed a bill in 2015 allowing retroactive record clearing for marijuana possession. Colorado also passed a bill in 2017 allowing prior marijuana misdemeanors to be expunged from criminal records.
What about the Feds?
In spite of current US Atty. General Jeff Sessions’ determination to quash the Cole Memo, the Task Force on Crime Reduction and Public Safety, appointed by Sessions, found no new policy suggestions for federal prosecution attempts on the legal cannabis industry (read Rick Schettino’s article on PotNetwork).
The Task Force recommendations were ultimately left unpublished, and Sessions continues to recommend that elected officials should oppose rules that block the DOJ from interfering with medical marijuana programs in states where such programs are legal, and to keep studying whether to amend or rescind the Obama administration’s hands-off approach to enforcement on federal cannabis prosecution.
States will continue to tackle this issue, and hopefully, thousands of possession-related misdemeanors can be removed from records. By decriminalizing marijuana possession through legislation, state legislators will ensure the proper and just implementation of legalization.