Arizona's marijuana legalization promised widespread expungements. It's not happening.
Arizona's marijuana legalization promised widespread expungements. It's not happening.
Marijuana expungements started on July 12. But few are taking advantage. This was a problem proponents of legalization saw coming.
This week, we’re looking at marijuana expungements, allowed under 2020’s Proposition 207. Today, we’re focusing on why expungement isn’t as popular as promised. Later this week, we’ll share a county-by-county resource guide on marijuana expungement.
In a spacious ballroom at an upscale Mesa hotel on a recent Sunday, a half-dozen marijuana advocates logged in to the state’s criminal records database, ready to help people with marijuana charges clear their permanent criminal records now that pot is legal.
Arizona NORML and the marijuana companies that funded the event advertised it far and wide. They even brought free lunch to entice hungry cannabis connoisseurs to come clear their records.
But the boxed lunches sat uneaten. The expungement clinic stations were largely unused. The ambitious rows of waiting-room-style chairs were completely empty. Despite their best efforts, only about a dozen people showed up all day.
Proposition 207 made big promises.
Not only was the law designed to legalize recreational reefer for adults, but the measure pledged to reverse decades of the War on Drugs’ devastating consequences on communities of color through progressive policies like expunging the permanent records of people arrested with small amounts of the drug that would be legal under the new law.
The problem is, only a fraction of eligible people are using it.
Marijuana expungements under Prop 207 began in mid-July. Cases have trickled into courts across the state, slower than many expected. But the problem was completely foreseeable.
Arizona NORML estimates there are about a quarter-million to half-million eligible cases in the state. So far, some counties can count their cases on less than one hand, while Arizona’s largest county has done thousands of cases.
There’s a trust gap and an information gap, making those most affected by harsh drug sentences unable and unlikely to file a petition with a prosecutor to expunge marijuana charges, said Julie Gunnigle, director of politics for Arizona NORML and the former Democratic candidate for Maricopa County Attorney.
“It's a mess. If we had a redo on 207, rewriting the expungement provision would be one of my first priorities,” Gunnigle said.
Several counties said they’ve struggled to get the word out that expungement is now available, free and simple for most people who qualify. And most counties so far are not proactively filing cases they believe qualify, largely because they say they don’t have the staffing and bandwidth to manage these cases.
Without these proactive filings, only the most tuned-in people know they qualify for expungement, and those may not be the people most in need of expungement.
Prop 207 allows anyone arrested, charged, convicted, sentenced or acquitted of possessing, consuming or transporting 2.5 ounces or less of marijuana (plus provisions for concentrates, paraphernalia and plants) to seek expungement.
Getting a marijuana record expunged can open doors. People who have criminal records face problems with getting certain jobs, fingerprint clearances or home and student loans. People who have felonies are prevented from voting (unless they get their rights restored) and owning firearms. Until voters legalized pot last year, Arizona was the only state where simple possession of a single joint was considered a felony, though oftentimes prosecutors would allow people to plead down to a misdemeanor.
Because of the benefits of expungement, some expected a wave of cases. It never arrived. Somerton’s municipal judge, Manuel Figueroa, told the Yuma Sun he used to have people ask about expungement before Prop 207, so he knows the need is out there.
“But now that it can be done, no one has petitioned for it,” he told the paper in early August.
This was an entirely foreseeable problem
Arizona is running into the same problem that many other states saw when they approved marijuana legalization alongside expungement provisions: Unless prosecutors proactively start these cases, people most affected by harsh marijuana laws won’t get their records cleared.
When California legalized weed, the expungement provision was similar to Arizona’s. But after years of seeing only a trickle of filings, lawmakers passed a separate law requiring police and prosecutors to find eligible people and expunge the records on their behalf.
Learning from California’s experience, when Illinois legalized marijuana, the law included a proactive expungement provision putting the onus on the government to find cases and clear them.
The Arizona initiative included $4 million in one-time grants, and some ongoing money, for nonprofits to reach out to people with expungeable convictions and help them file petitions for expungement.
The law, however, does not allow groups to proactively file on peoples’ behalf. Only prosecuting agencies can do that, but only a few are doing it. The initiative also says the Attorney General’s Office can file for expungements on behalf of any individual.
Caroline Issacs, program director for the American Friends Service Committee, acknowledged the system is far from ideal.
She worked on the initiative and is part of the coalition of groups under the banner of the Arizona Expungement Coalition, which was awarded the grant funding to raise awareness and guide people through the expungement process. It is launching tomorrow.
“It is not enough,” she said. “It’s the least we could do. And at the same time, it’s more than has ever been done.”
Putting the onus on government agencies to find and expunge those records was a major point of discussion in crafting the initiative, Isaacs and other backers said. But at the end of the day, they made a political calculation that if they forced police and prosecutors to find and expunge those records, they would have fought harder against the initiative, perhaps even swinging its victory into a defeat.
“This was a long-term strategy for us. We know that this is, again, the most and the least we could do. What we’ll do here is come back and say this is not getting the people it needs to get to, and we need legislation,” she said.
Prop 207 includes a section with potential follow-up laws that won’t flout the Voter Protection Act and would further the purpose of the ballot measure. One of those: Making expungements automatic.
But given the current makeup at the legislature, few believe that is a viable option, at least in the near future.
Expungements change lives, when people can get them
Gianluca Palermo, one of the few to take advantage of the expungement clinic at the Mesa hotel ballroom, hasn’t been able to find a good job since he was arrested with a gram of concentrated THC in 2017.
Palermo was 21 when he used his Arizona medical marijuana card to buy less than $50 worth of “wax” — a concentrated marijuana extract — from a licensed dispensary in Yavapai County — one of the few counties that pursued charges against medical marijuana patents using concentrates. When he got pulled over by police on his way home, he was open about having marijuana on him, believing he had nothing to fear because he hadn’t been smoking and had a valid medical card.
But police arrested Palermo anyway. He spent a winter night in jail, cold and hungry. It cost him roughly $5,000 in court fees, lawyers and drug tests, and he pleaded to a misdemeanor charge of drug paraphernalia — a charge that is still on his record despite a unanimous decision from the Arizona Supreme Court in 2019 that said medical marijuana patients can’t be arrested for buying concentrates from licensed dispensaries.
“To an employer, those charges don’t say you were charged with a gram of wax that you bought from a dispensary and had a receipt,” the 26-year-old Phoenician said. “I can tell somebody that, but it’s up to them if they believe me.”
Want to expunge your record? Start here.
The Arizona Courts’ website has expungement forms you can use for any jurisdiction, including superior, municipal and juvenile courts. The website also has instructions for how to file an expungement.
Arizona NORML created a web form that will populate petition forms for you when you enter your case-specific information.
The expungement process should be free. Your county may help you file, or volunteer attorneys could help as well. Arizona NORML holds free clinics around the state to help people file for expungements.
So far, the number of cases isn’t anywhere near the need
In counties that aren’t proactively going through cases, there’s just a trickle of interest.
Maricopa County proactively reviewed about 7,500 cases from the last five years, and the county attorney’s office plans to file petitions on more than 7,000 of those, said Jason Kalish, division chief of the Trial Division at the Maricopa County Attorney’s Office. The office aims to file about 400 per day, Kalish said.
People can request the county attorney file a petition on their behalf as well, and about 700 people have asked Maricopa County to do so, Kalish said. The county attorney agreed in about 81% of those cases.
The county has filed close to 4,500 petitions on behalf of defendants so far, between the proactive review and the people who requested assistance via the county’s website, he said.
By contrast, only about 300 people have filed their own petitions asking to have their cases expunged, he said.
“The new law says that all filings should be free. We don’t want anyone to have to pay to fill out a form that they could do themselves, or have us do on their behalf,” Kalish said.
Proactively filing helps those who may not realize expungement is an option for them, but the universe of potential cases is much larger than 7,500, Gunnigle said.
In Mohave County, the three attorneys in the drug unit don’t have the bandwidth to go back and review cases to file petitions, said Amanda Claerhout, one of those three attorneys.
“We haven't done as many expungements so far as I thought we would. We've done three so far,” Claerhout said. “The defense attorneys seemed like there were a lot kind of ready at the gates, but we haven't seen the flood I thought we would.”
The Kingman Municipal Court is going through old cases and filing petitions when warranted, though, she said.
That’s something marijuana legalization advocates want to see replicated in other places. City courts can proactively file petitions on behalf of people charged in their courts. But most aren’t doing so, Gunnigle said.
The Pima County Attorney’s Office filed several cases proactively once the process started on July 12, but now has “enough requests on our website to keep us busy,” said senior counsel Gabriel "Jack" Chin. The office has filed 54 cases total, six of which were responses to individuals’ petitions, he said.
The process in most Arizona counties requires people who have a weed-related arrest or charge to seek expungement on their own. It requires people like Palermo to know that he should show up at a hotel ballroom and get some assistance. It relies on the marijuana industry to fund and find people who need expungements and a network of advocacy organizations to assist.
The stakes — and the benefits — are huge for people who need a cleared record to move forward in their lives.
Palermo has tried to find more meaningful work than his current delivery app gig, but has repeatedly been denied when potential employers see the charge, even though he completed his yearlong probation term. He’s given up on chasing his dream of working in the weed industry, at least as long as this charge is on his record, and has quit applying for jobs that require background checks.
“I haven’t been able to pursue the things I really want to do because I’m not going to apply for a job and have them turn me away for these charges,” he said. “So now we’re here and hopefully in the next couple months they’ll drop it and I can start up a life, a real life.”