As the expungement process set up by Proposition 207 settles, legal advocates say those most impacted by marijuana policing are more likely to be left behind
A tawny glow covered the hotel conference room — light from the wall sconces bounced off the plush cerulean and cream carpeting and reclined across brown suede tablecloths.
At one end of the room, two groups of 12 chairs sat vacant. At the other, six tables with parallel seating lay in wait.
Jon Udell and Mike Robinette waited too. With two laptops at the ready, the duo prepared for the next person to walk through the room’s double doors, take a seat and fill out a form with the potential to drastically change their lives.
Udell, the politics director for the Arizona National Organization for the Reform of Marijuana Laws, and Robinette, executive director of the Southern Arizona NORML branch held the 44th marijuana expungement clinic since July on Nov. 19 at the DoubleTree Hilton Hotel in Mesa.
Arizona NORML set a goal to hold 50 clinics across all 15 counties by the end of the year. Udell and Robinette have since embarked on numerous road trips, taking them from Kingman to Yuma to Saint Johns and beyond.
Prop 207 created the first pathway to expungement for hundreds of thousands of Arizonans. Critics of how the process was designed say it’s leaving people behind.
Each person who cycles through their clinics carries the story of their arrest or conviction with them. Udell and Robinette said what they’ve heard paints a troubling picture of marijuana policing and criminalization in Arizona.
“The clinics reinforce how different it is to know something in the abstract than it is to speak with people face to face who have lived the experience,” Udell said. “The specifics always stand out and are appalling.”
The expungement petition process opened in early July. Soon after, legal clinics much like the one hosted by NORML dotted the calendar and quickly became more concentrated as legal and advocacy groups got up and running.
The Maricopa County Superior Court has approved over 8,000 petitions thus far, with each approved expungement serving as a step — sometimes a leap — toward securing employment, housing, public nutrition benefits, and in some cases, shortened prison sentences and probation time.
A simple form, a short visit to a legal clinic can provide all this and more. But attorneys and advocates working in the field find those who stand to gain from expungement face immense hardship in getting it and argue the Smart and Safe Act does not do enough to rectify the state’s role in the war on drugs and its impact on vulnerable communities.
When Proposition 207 — a November 2020 voter initiative that legalized recreational cannabis use in Arizona — passed with a stunning 60%, it marked a major shift in cannabis law in a state that is renowned for its antiquated, harsh and oftentimes nonsensical approaches to drug policy.
Along with legalization came the first avenue for Arizonans to expunge their records of certain cannabis-related charges or convictions.
However, those who could potentially benefit from expungement are oftentimes forced to seek it out on their own through private attorneys or pro bono legal clinics across the state.
Some working within the Arizona Marijuana Expungement Coalition (AMEC) argue that the Smart and Safe Act doesn’t do enough to rectify the state’s role in the war on drugs and its impact on vulnerable communities.
AMEC grew out of a $4 million fund from the Arizona Department of Health Services to provide pro bono legal aid to those eligible for expungement under the new law.
The recent undertaking has proven arduous, as legal aid clinics and grassroots organizations throughout Arizona must heavily invest in outreach and awareness campaigns while grappling with county attorneys, judges and bureaucratic labyrinths.
Critics of how pathways to expungement have been laid out for Arizonans, including Julie Gunnigle, former politics director for Arizona NORML and 2020 Democratic candidate for Maricopa County Attorney, note that, because expungement was not designed as universal, those who have been disproportionately impacted by Arizona’s criminal legal system can easily be left behind.
The opt-in model for expungement is inherently problematic, Gunnigle argues, as those in rural regions of the state like Apache, Graham and Navajo counties are burdened with navigating a governmental and legal system they may not know how, or even want to, involve themselves in again.
“When you make an opt-in system, you’re by definition going to be making sure that folks who have the privilege, who are most connected and have the most access are the people getting expungements,” Gunnigle said. “And that’s just flat-out wrong.”
During a “good” expungement clinic, staff “processes between 50-100 petitions,” Gunnigle said, with about half of the individuals coming in having a single cannabis-related conviction or arrest while the other half have two or more.
“When you really start having conversations with folks in that situation, you realize — well, what people have been saying for a very long time — this is not a gateway drug, this is for sure a gateway conviction that leads to future involvement with the criminal legal system,” she said.
Yahya Kenyatta was charged with aggravated assault after getting into an altercation with two police officers in 1991. One of the police officers discharged a firearm, and Kenyatta was hit. The officers were largely uninjured.
Typically, the offense warranted a seven-year prison sentence. Kenyatta got life in prison.
Kenyatta had a prior marijuana charge, placing him on probation at the time of the altercation. The drug violation coupled with two other charges for theft left Kenyatta with the maximum sentence.
Randal McDonald, supervising attorney and director of the Post-Conviction Clinic at ASU’s Sandra Day O’Connor College of Law, caught wind of the case through the Arizona Justice Project.
At first, the Post-Conviction Clinic was looking into Kenyatta’s case on an evidence technicality. Then, they realized his prior marijuana charge was an expungeable offense.
Kenyatta worked with McDonald and students at the Post-Conviction Clinic to submit his petition to expunge his charge.
Once his petition was approved, he was resentenced. After 28 years behind bars, Kenyatta stepped out of Florence State Prison and back into a world he thought he’d never reenter.
McDonald said the Post-Conviction Clinic has made incarcerated people with expungeable marijuana offenses like Kenyatta’s a priority. The program is involved in about 10 cases right now.
Though they are making some headway, McDonald said they have run into issues getting resentencing trials and seen some pushback from judges.
Some cases, though, have yet to make it onto an attorney’s desk at all, leaving many sitting in prison with an expungeable marijuana charge and without knowledge of the option.
Place of residence
Some don’t have the option at all.
Marijuana remains illegal at the federal level, meaning any type of drug law violation may subject noncitizens and green card holders to mandatory immigration detention and deportation and bar them from lawful status or asylum.
Immigration and Customs Enforcement has deported over 9,000 people from Arizona on non-traffic marijuana offenses since 2003.
Though there is some leniency, allowing inadmissibility for a single marijuana possession or influence charge, the drug war remains “a primary mechanism for removing immigrants,” according to a report from the Drug Policy Alliance.
The marijuana expungement petition requires applicants to list an address, which poses a threat to noncitizens living in the U.S., potentially sending U.S. Immigration and Customs Enforcement officers to their front doors.
“Above all things, we want to do no harm, and there are instances where filing an expungement petition has the possibility of doing harm,” Gunnigle said. “If there’s an active immigration case, and you’re required to place a physical address on it, that places people at risk and compromises safety.”
Because of the conflict between citizenship status, drug charges and the pathway to expungement, Lindsay Herf, executive director of the Arizona Justice Project, said legal and advocacy groups have to “tread lightly.”
Herf recommended hiring an immigration lawyer, which comes at a cost. And though an expungement might hold some weight in immigration court, financial obstacles render expungement unattainable for many.
Filing a petition for a noncitizen with a warrant or an active immigration case could end in deportation, Martin Hutchins, marijuana expungement litigation manager of the Arizona Justice Project, said.
Requiring a physical address presents another glaring hole in the expungement process for unhoused individuals. In order to file a petition, an individual must have a mailing address that they can send and receive communications to and from the court.
This obfuscates and complicates the expungement process for those without a home address.
In order to navigate this hurdle, Hutchins encouraged unhoused individuals looking to file a petition to use the address of local unhoused services.
Shadow of Arpaio
There are hundreds of thousands of marijuana convictions waiting to be expunged, Herf said, and while members of the coalition don’t have enough data to determine the dominant demographics of petitioners, “if you look at crime and prosecution in general, in Arizona and across the country, it’s disproportionate in terms of what neighborhoods are being policed.”
For many, it’s not opaque. American policing as an institution is infamously racist. In connection to cannabis law, this is no different.
While state cannabis legalization has mitigated some of the pervasive racism of policing and the criminal legal system in Arizona, critics say politicians, judges, attorneys and law enforcement are merely shifting their tactics and leaning on nuanced loopholes.
Additionally, the federal illegality of cannabis doesn’t help to curtail this shift either; instead, it further problematizes dominant cultural and institutional views of cannabis consumption.
Within the past year, Will Knight, an Arizona attorney, former 2020 MCA candidate and adjunct professor at ASU’s Sandra Day O’Connor College of Law, said he has represented two individuals who have marijuana charges that predate Prop 207’s passing. While most of these types of charges have been dismissed by the MCAO, he said the charges from these two cases have not.
In November of last year, the MCAO announced it would dismiss all pending and unfiled cannabis or paraphernalia possession charges that fit within the parameters established by Prop. 207; one initial draw to the proposition was the prospect of 200,000 Arizonans being able to clear their records.
“That also was an issue during the campaign, which Julie remembers very clearly, I think, that Allister Adel sort of implied that the law wasn’t going to be retroactive, and then walked it back,” Knight said. “I think she’s definitely wrong on the law on that, and time is going to tell, but there’s still some folks, at least, that are jammed up in the criminal legal system that are having to contend with that.”
He added that individuals with charges predating legalization oftentimes have other charges, and that their cannabis charge is typically “collateral.”
Just because cannabis is legal in Arizona now doesn’t mean there aren’t a plethora of cannabis-related offenses that someone can commit, Knight added, including possession over the legal limit, selling without a license and driving under the influence of cannabis.
“There’s still potential probable cause that law enforcement could manufacture, and has manufactured in some specific cases, to criminalize people, typically Black and Brown people,” he said.
One instance where “prosecutors are being creative in continuing to try to criminalize people” is in the context of drivers who have their commercial driver license, Gunnigle said. A person who has a commercial driver’s license and is found in possession of a legal amount of cannabis defined under Prop. 207 can still face criminal penalties, she said, adding that “the prosecutors of some outlying counties have been really aggressive in pursuing those sorts of cases.”
While the public’s views toward cannabis are largely becoming increasingly progressive across the state, there remains mild fear mongering initiatives aimed at sustaining the cultural linkage between cannabis and illegality or wrongness.
“Law enforcement is still pretty rabid about it,” Knight said. “We just got past Halloween, right? Every Halloween there’s all the propaganda — it used to be about putting razor blades in candy — now it’s about edibles being sold to children … that kind of s— doesn’t happen.”
Law enforcement agencies and certain conservative politicos and attorneys are invested in this scare campaign, Knight said.
“They seem unwilling to accept the will of the people on that issue in general,” he added. “They’re still aggressive in trying to find any loophole that they can to continue prosecuting marijuana-related offenses.”
While the opt-in petition process is the main avenue for expungement at this time, cannabis advocates are hopeful that expungement will expand beyond burdening those impacted by Arizona’s war on drugs.
Tasking Arizonans who could benefit from expungement with traversing a legal system that they may not trust or believe in is a detriment to the possible scope of expungement, Herf said.
What would “be a more fair way to accomplish expungement,” she added, would be for county attorneys to “affirmatively file” petitions; so far, though, attorneys outside of populous counties have been slow to tackle expungement.
The end game, however, is universal expungement.
Though opinion splits on its likelihood, advocates remain hopeful.
And in the meantime, Udell, Robinette and other expungement proponents intend to keep waiting at tables, filling out forms and expunging records for as long as it takes.
“It’s not atypical to see tears of joy. In 10 minutes, (you) can change someone’s life,” Robinette said. “That’s how powerful it really is.”
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