California AG sends thousands of marijuana criminal reviews to prosecutors, sparking questions on all sides

California just took a key step toward fulfilling a major promise of marijuana legalization — to provide relief for people previously convicted of cannabis-related crimes.

By July 1, the state Attorney General’s office sent to county district attorneys the names of hundreds of thousands of people who are potentially eligible to have marijuana crimes downgraded or dropped from their records as part of California’s new marijuana laws. Prosecutors now have until July 1, 2020 to process or oppose each individual change.

Advocates for criminal justice reform are applauding the effort, saying it will improve the lives of Californians who’ve been held back from jobs, housing and other benefits due to marijuana-based criminal records.

However, some also are worried about resistance from county prosecutors. And they’re raising concerns about how the Attorney General is identifying eligible cases, saying it leaves out thousands of people who should benefit from legalization laws.

“The AG fumbled the first step out the gate,” said Nick Stewart-Oaten, attorney with the Los Angeles County Public Defender’s Office. “A bunch of people the legislation intended to reach aren’t going to get help.”

Meanwhile, county prosecutors say they’re scrambling to find resources to translate the data provided by the state, review the records, and take cases to court.

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.

Here are some key questions about how we got here and what comes next for marijuana law in California.

Q: How has marijuana law changed?

A: Along with legalizing recreational marijuana in California, Proposition 64, approved by voters in 2016, reduced the penalties for just about every crime involving cannabis. Selling marijuana without a license, for example, was downgraded from a felony to a misdemeanor. And the measure eliminated all cannabis-related criminal penalties for people under 18.

As a result, marijuana arrests in the state are falling dramatically. From 2013 through 2018 the number of marijuana-related felony arrests per year fell 88 percent, from 13,779 to 1,617, according to the Attorney General’s annual Crime in California report.

Q: What does that mean for people with past marijuana-related convictions?

A: The criminal changes made under Prop. 64 were retroactive, so people have been allowed since November 2016 to petition the courts to have old marijuana charges downgraded or cleared from their records.

The nonprofit Drug Policy Alliance, which backed Prop. 64, estimated that up to one million people might be helped by this part of the law. However, state records show that just 4,885 people — or less than 10 percent of the people eligible to have their records adjusted — had petitioned to do so by the end of 2017.

Advocates say most people might not know the law has changed. Those who do know often can’t afford an attorney to help them with the process. And while anybody can file the paperwork on their own, many struggle to fill out legal forms, pay required fees, take time off work or find transportation to get to the court where their violation took place.

People of color figure to be hurt the most. Though minorities and whites have used weed at roughly the same rates over the years, Drug Policy Alliance data shows that non-whites have been much more likely to be arrested and prosecuted for marijuana-related crimes.

Given those realities, some counties decided to proactively track down and process all marijuana cases eligible for expungement. San Francisco District Attorney George Gascón started the trend in January 2018, and prosecutors in San Diego, Alameda, Sonoma, Yolo, Los Angeles, Sacramento and San Joaquin counties have since followed suit.

That movement spread statewide in September, when the legislature approved Assembly Bill 1793. The law gave the state Attorney General’s office until July 1, 2019 to identify all potentially eligible cases and send them to counties for review. And the bill gave local prosecutors until July 1, 2020 to weigh in.

Despite repeated requests over three weeks, Attorney General Xavier Becerra’s office did not provide total counts or breakdowns on cases sent to counties by the July 1 deadline. Spokeswoman Jennifer Molina said they were still compiling that data.

Q: Why are advocates worried about how California is handling this issue?

Public defenders and criminal justice advocates say the Attorney General’s list of marijuana cases eligible for dismissal or resentencing leaves out an entire group of people — one that might deserve the help the most.

The state only called out cases where people were convicted of marijuana possession, cultivation, sales and transportation. But historically, and often when the prosecution’s evidence is weakest, Stewart-Oaten of L.A. County said defendants who were arrested for marijuana-related crimes sometimes plead guilty to lesser charges that don’t involve cannabis. Even though case law says such charges are also covered by Prop. 64, they won’t be flagged for automatic erasure in the current system.

Say, for example, a driver in pre-Prop. 64 California was pulled over and his passenger was found to be carrying enough cannabis to warrant a drug sales charge. Rather than try to make the drug-sales charge stick for both passenger and driver, the prosecutor might let the driver plead guilty to being an “accessory after the fact to a felony.” Today, under the state’s new marijuana laws, the passenger — the person who actually carried the marijuana — would likely be on the Attorney General’s list of people who might get their record expunged. But the driver — the person who might not have been aware of the marijuana and wasn’t ever charged with holding it on their person — would not. And that’s true even though the crime linked to the driver is no longer a felony.

The California Public Defender’s Association wrote a letter to Gov. Gavin Newsom in January calling that this a “narrow and legally inaccurate” move. Stewart-Oaten said they’ve followed up with the state three times since, but haven’t heard back.

Q: How are local prosecutors responding?

District attorneys have until July 1, 2020 to review cases passed down from the state to see if they meet requirements for resentencing. They also must decide whether to oppose downgrading any charges, which they can only do if the defendant is “an unreasonable risk to public safety.”

When asked how they could predict whether someone is likely to commit a violent crime in the future, Jennifer Peterson, assistant district attorney for San Bernardino County, said they would likely rely on past violent or serious convictions.

While that does leave some gray area, Stewart-Oaten said he hasn’t seen prosecutors so far trying to fight resentencing of qualified cannabis charges.

If the prosecutor doesn’t oppose downgrading a marijuana charge, or if they try to fight it and lose, the local court has to dismiss or reduce the charge. But there’s no deadline for when courts must make those rulings.

Some defendant advocates are also concerned about what they see as “obstructionist tactics” stopping local authorities from handling these cases in a timely way, according to Armando Gudino, California policy manger for the Drug Policy Alliance.

Southern California district attorneys say they intend to hit the 2020 deadline, but that it could be a struggle.

Catlett said Riverside County didn’t actually receive “cases” from the state. Instead, she said they received “half a million lines of data,” which they need to convert into usable information. She added that her office is trying to figure out how much the process will cost, but they’ll handle it “as expeditiously as we can with no extra funding and no extra bodies.”

Los Angeles County officials said they expect to review about the same number of cases expected to be under review in Riverside County — about 50,000. The Orange County District Attorney expects to handle up to 13,000 cases, and San Bernardino County received more than 9,000 cases from the state.

While he recognizes the challenges to completing such a broad, sweeping review, Stewart-Oaten said it’s in everybody’s interest to clear eligible cases as soon as possible, since all Californians pay to support people who can’t find jobs or housing because they still have marijuana crimes on their records.