Some States Increase Cannabis Arrests, Some Expunge Cannabis Arrests... Some Do Both

“Those who cannot remember the past are condemned to repeat it,” wrote philosopher George Santayana before his death in 1952. Today, over a half a century later, this oft-tossed quote rings as true as ever, yet so many people fail to take heed of it. Humans have enjoyed a beneficial 5,000+ year history with the cannabis plant. Due to the age of our relatively young nation, the United States of America has a considerably shorter relationship, but historians agree that our nation’s founding fathers themselves were using the cannabis plant in a variety of ways – including out of a pipe while lounging on the front porch. But even more recently than that, cannabis spent the past century being highly stigmatized and subject to militant levels of prohibition and law enforcement bias. For many of us in weed-legal states, it is far too easy to forget just how bad it used to be for potheads, and it is even easier to forget that there are some states that still treat cannabis as Public Enemy #1.

With all of the various cannabis reform efforts on the east coast, it shocks most people to learn that the state of Virginia still has so adequate cannabis legalization in place for medical or recreational customers. Simply put, it is illegal for all purposes and any possession of any amount can lead to a misdemeanor charge and even a month behind bars. Over 30,000 residents of the Commonwealth of Virginia were arrested in 2018 alone for cannabis-related charges. That is triple the numbers put up by law enforcement back in the 1990’s, during the dark days of the War on Drugs. So now there is talk at the state level of whether or not to decriminalize the possession of “small amounts” of weed. Decriminalization is always less than half a step in the right direction but it is always a positive move. Currently, Virginia spends $80,000,000 EVERY YEAR enforcing these lame ass pot busts and the numbers show that the people most affected are adults under the age of 24 and African Americans.

So the state is spending $80mill a year to saddle young, more often than not black, citizens with life altering criminal charges over a bag of weed. Meanwhile, out in California, the state is almost certainly spending millions of dollars to undo hundreds of thousands of the exact same charges in a mass expungement effort as part of a mandate written into that state’s 2016 law that created a taxed and regulated recreational cannabis market for adults age 21 and up.

Expungement is on the table in California because the new cannabis laws set forth in 2016 also extend backward retroactively so that most Cali residents with state-level non-violent cannabis convictions are eligible to have those charges either reduced or even wiped out completely, free of charge. But you know and I know, nothing is free in life (except dispensary pre-rolls and please don't smoke those shits). Someone has to pay those lawyers so they can make the monthly lease payments on their 3-Series BMWs.

The Drug Policy Alliance estimates that up to one million Cali residents could have cannabis related felonies knocked down to misdemeanors, and misdemeanors omitted from their permanent records completely. After the first year of “legalization” in California, however, just 4,885 people had completed the process of having their records adjusted. This has been a poorly advertised (as in, not at all) aspect of the state’s flawed weed laws, even though it was a major selling point for those who supported the bill leading up to November of 2016. Many people who may have known that expungement was a possibility assumed that they would need to hire a lawyer of their own to navigate the process successfully. But the fact is, the state has been doing most of that work in an attempt to automatically identify and then expunge the records of hundreds of thousands of past low-level pot busts.

The state Attorney General’s office had until July 1st of this year to amass all of the names of those eligible for potential criminal record relief by way of expungement as mandated by Proposition 64. They were to then send that list to District Attorneys statewide who have one year – until July 1st of 2020 – to either accept or oppose each individual charge for each person on that long list. That task, the AG says, is complete and the ball is in the court of the local DA’s.

Imagine the man-hours dedicated to this task so far by people with salaries much larger than most of ours…. And the process is just getting started. Will local podunk prosecutors just rubber stamp a fat stack of once-convicted potheads, erasing those crimes forever? How much time can they afford to spend on this monumental project? Because they only have a year to weigh in. We are not even out of July yet and county prosecutors say they’re not sure where they are supposed to find the resources to review the records given to them by the state and take an unknown number of those cases back to court. According to the Orange County Register: “Riverside County Chief Deputy District Attorney Kelli Catlett, whose office is tasked with reviewing roughly 50,000 cannabis cases over the next 11 months, called this the largest unfunded state mandate her office has faced.”

Remember though, the DPA estimated up to a million candidates for expungement here in California. Honestly, even that seems too low. Officials in Illinois, which just recently passed its own recreational cannabis law, say that they plan to automatically expunge the records of nearly 800,000 residents with past cannabis crimes. Cali has 40 million residents, Illinois is barely creepin’ up on 13 mill. Now the state AG’s office is patting themselves on the back about having processed “hundreds of thousands” of expungement candidates. It’s not adding up. If enough light gets shined on this issue there is a good chance that it could result in years of continuing demands for further analysis to ensure that nobody gets left out. This will cost the state and local jurisdictions millions of dollars. This after decades of spending millions every year to make all of those pointless arrests.

With its own future in plain view by way of what is happening right now in California, will Virginia continue to repeat the mistakes of the past? Regrettably, our guess is yes considering that California is raiding pot farmers as we speak and handing them a misdemeanor that someday, some overworked attorney will just have to slather in white out anyway. Condemned, indeed.

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