BY JESSICA CASTILLO | Original illustration for Ember by Jordan Bogash
When Californians voted to legalize recreational cannabis in 2016, it was a cause for celebration. Not only did Proposition 64—titled the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA)—allow millions of people in the state to possess and use cannabis, as well as set a regulatory framework for a potential billion-dollar industry, but the bill promised to help millions of people with the kinds of criminal records that were now legal with a new path forward. Under AUMA, those people could petition the court to have their records expunged. But that could often prove to be a lengthy, expensive, and confusing battle, and many of the people who needed the most relief often did not have the time, money, or resources available to them to go through the system—paradoxically, often because of the limitations that their records imposed on them.
Lawmakers attempted to get things right with Assembly Bill 1793, which was passed and signed into law in 2018. It marked a new era in the fight for criminal record reform: The bill, which was introduced and championed by then-Assemblymember (and now Attorney General) Rob Bonta (D), set the wheels in motion for automatic expungement. As USA Today noted at the bill’s passing, the California Department of Justice estimated the bill would help at least 218,000 people with past cannabis convictions, an overwhelming number of whom are people of color. But counties across the state have run into a number of roadblocks, and now, nearly three years later, thousands of Californians still haven’t received the relief they were promised.
“I think California deserves credit for really being the first big state to embrace making this automatic,” Douglas Berman, a professor at the Ohio State University Moritz College of Law, told Ember about the state’s pioneering role in cannabis reform. “But they didn’t have, in some sense, the experience of failure that California is now going through, to learn, ‘Oh, it’s not enough to make [expungement] automatic. We need to have deadlines and infrastructure to make sure it actually gets done a certain way at a certain time.’”
While some District Attorneys have directed their counties to prioritize cannabis-related record clearance to successful effect, other counties are still lagging behind. In short, the state is building the boat after having boarded it—and it is going to need all the help it can get. Here’s what you need to know about the fight to see AB-1793 through to its full potential, and the people who are working tirelessly to make that happen.
Though more and more states are now embracing record expungement as part of their cannabis reform frameworks, California was the first to opt for an automatic model rather than a petition-based one. The bill compelled both the state Department of Justice, as well as district attorneys in each of the state’s 58 counties, to review past convictions that were now eligible to be reduced to misdemeanor sentences, or expungement entirely.
But few counties had the existing infrastructure to ensure that the process was a smooth one, and as a result, a person’s relief has largely depended on sheer luck. If their conviction occurred in San Francisco, for example, it is likely that it has since been cleared from their record, thanks to work done by the office of District Attorney George Gascón in 2019. (Other counties, such as San Diego, Santa Clara, and Santa Cruz, have also cleared thousands of convictions, California NORML noted). People whose records are kept in other counties may not have yet received expungement.
Though Professor Berman noted that legislators could “take a lot of possible routes'' to ensure that their residents and constituents receive the expungement they have been promised, he personally believes that the key to statewide relief is “an administrative agency or some sort of dedicated government, either official or body, that is tasked with follow-up—[whose] job is to find out, ‘Is every jurisdiction doing this and how are they doing it?’” He also hopes that such a role would encourage counties to speak to each other about what worked and what didn’t, so that lawmakers can learn collectively rather than by the same trial and error.
Berman sees the state's transition from a petition-based expungement approach to an automatic one as "the next wave of reform." "But now we need to go from [that] to, how do we make sure this gets implemented effectively?” he said.
In a statement provided to Ember, Attorney General Bonta noted that “too many Californians have been treated unfairly as a result of the many broken parts of our criminal justice system. They deserve more justice, more humanity, and a second chance.” He added that AB-1793 “is a bill that seeks to right a historic wrong,” and that he is “excited to play a role in seeing through as Attorney General.”
“The California Department of Justice and local agencies have been hard at work since the law’s passage in 2018, but there’s much still to be done,” he added. “As the People’s Attorney, I will do all I can to ensure all those with qualifying cannabis-related convictions have their records dismissed, sealed, or redesignated.”
Though Attorney General Bonta and other lawmakers have an obligation to see that laws like AUMA and AB-1793 are enacted and upheld, they are far from alone in the effort to do so. Nonprofit organizations and those with an eye for justice reform are also joining in the fight toward cannabis reform, and to make sure that no eligible record is left unchanged.
“The long and short of it is, we just don’t know exactly how AB-1793 has been implemented county to county across the state of California,” Mickey Belaineh, the Director of Impact at Last Prisoner Project, told Ember. “So in order to know how successful or not successful the legislative initiative has been, essentially we need to look at the data. And more importantly, we need to gather good data in order to see what’s what, such that we can have evidence-based, status-driven, informed solutions.”
Last Prisoner Project is just one of a number of organizations rallying around what Belianeh called “project management” with regard to making sure laws like AB-1793 are realized. “Looking at the data, talking to all the stakeholders who have a hand in it, or who has to touch the paper or the record… Getting your record cleared is more than just passing the law. It doesn’t just happen,” they said. “We have to find the records, we have to match the records with DOJ records. There’s a whole process, and there’s a whole number of areas as to why even though the law passes on this, [that] is not really happening for however many folks within the jurisdiction or even the stakeholders that are responsible for implementing it.”
The push to identify and streamline the data process is a multi-pronged effort. In 2016, Code for America launched the Clear My Record program, which aimed to help people with criminal records petition for reduction or expungement; that program shifted to focus on automatic expungement in 2018. Last Prisoner Project is also working with Root & Rebound, which focuses on reentry initiatives for formerly incarcerated people, as well as a few other organizations on the ground in California.
In Santa Clara county, much of the work to clear upwards of 16,000 cannabis-related convictions came from San José State University’s Human Rights Institute. “We worked with our DA’s office to really try to achieve this in our own backyard, and to universally clear all of those records from top, down without folks having to come in and do that on their own,” Dr. Bill Armaline, PhD, a sociology professor at San José State and the director of the Institute, told Ember, noting that the first push resulted in the clearance of 13,000 records for 9,000 people.
“Our goal from there was, how can we make sure that this kind of implementation gets done throughout the rest of the state? And that involves a number of things,” he said. “That involves, first of all, figuring out what is going on in the rest of the state, and as you might imagine, that data is not readily available. One of our tasks right now is to try to get that together. The other steps there are then to figure out, in the places where [expungement] has not been done, to what extent is it political? To what extent is it, some of the frankly logistical problems that we became aware of in our process during our own county’s work? And the third step is to work with our partners [...]—frankly, whoever’s willing and able—to get this done in similar fashion throughout the state.”
Armaline credits a student group called Students Against Mass Incarceration (SAMI) for sparking the HRI’s involvement in seeing AB-1793 through to completion; in 2018, the students hosted a public forum that Bonta attended, as well as other actions that lead up to action by Santa Clara county’s legislators.
“Once we were able to transition from pressure to partnership, we really didn’t look back,” Armaline added.
That doesn’t mean the work was easy. As Dr. Ericka Adams, an assistant professor at San José State, noted, “having a complete list of accurate data seems to be really important,” adding that at one point data for cannabis-related convictions in Santa Clara county was “close to 90 percent inaccurate. It seems like how states and counties keep records is so instrumental in terms of what gets cleared and what doesn’t.”
Incomplete data can serve as the cause for plenty of error, especially if the information in the Department of Justice’s database doesn’t align with the information in a local ordinance’s database, or the data is stored in a different format from system to system.
“Depending on how the records are stored, you may have records from the court that are not necessarily consistent,” Dr. Adams said. “I don’t know all the technological difficulties that some counties have encountered, but one of them would be making the different databases that they’re using sort of speak to each other, so they could capture all the cases and then write the court to clear it.” Some counties have worked to solve what could simplistically be referred to as an IT issue; others still might not have the resources to do so. Whether those solves are prioritized, and when, could mean the difference between further hardship for thousands of Californians, and the second chance they were promised.
As the assemblymember who introduced AB-1793, Attorney General Bonta may be uniquely positioned to see that the spirit of the so-called “Bonta bill” is fully realized. How the state of California gets there, however, is up for debate.
For their parts, both Drs. Adams and Armaline hope that universal clearance could serve as a logical next step. “I think there are some questions to ask here in terms of, how do you really do this?” Dr. Armaline said. “One thing that we can think about is whether or not it makes more sense if we’re going to say that, ‘Hey this is no longer going to be criminal, and all these folks should have their records cleared, then that should just be done universally at the state level.’ It shouldn't have to trickle down to the responsibilities of all these other agencies, let alone the individuals themselves.”
“The more individuals you have being responsible for clearing convictions, the longer it will take and the more complications that will arise,” Dr. Adams added. Because ultimately, automatic expungement isn’t as automatic as it seems. There is no magic “delete” button wiping eligible records clean; the effort takes work, plenty of filed paperwork, and a considerable amount of resources.
Berman suggested that states looking to invest in automatic expungement use the revenue from the growing cannabis industry to fund the effort. To that end, AUMA pledged a starting budget of $10 million per year meant to support organizations dedicated to “job placement, mental health treatment, substance use disorder treatment, system navigation services, legal services to address barriers to reentry, and linkages to medical care for communities disproportionately affected by past federal and state drug policies.” The fund will top out at $50 million per year by 2022, yet for every day that passes, people whose records should have been cleared may be barred from obtaining licenses, being approved for housing, landing jobs, or any other limitations that affect their lives going forward.
Until automatic expungement is fully realized, it’s important to keep the energy up, no matter how long it takes. “Unfortunately a lot of the problems happen in implementation [of a law]," Dr. Armaline said. “When our eyes come off the ball, that’s when things tend to fall apart.” Because the win did not happen in 2016 with AUMA, nor in 2018, when AB-1793. The real win will be once every eligible cannabis record is cleared—when the law becomes the truth.