SAN FRANCISCO—On Wednesday, January 31, District Attorney George Gascón announced that the San Francisco District Attorney’s Office will be retroactively applying Proposition 64, which legalized the possession and recreational use of marijuana for adults ages 21 years or older, to misdemeanor and felony convictions dating back to 1975.
A press release from the DA’s Office noted that while the initiative which decreased criminal penalties for marijuana offenses after its passage in November 2016, provides reduction or dismissal upon a petition filed by a convicted individual, the San Francisco District Attorney’s Office will be reviewing, recalling and resentencing up to 4,940 felony marijuana convictions and dismissing and sealing 3,038 misdemeanors which were sentenced prior to the initiative’s passage. This will not require action taken by those who are eligible pursuant to Proposition 64.
“While drug policy on the federal level is going backwards, San Francisco is once again taking the lead to undo the damage that this country’s disastrous, failed drug war has had on our nation and on communities of color in particular,” said District Attorney George Gascón. “Long ago we lost our ability to distinguish the dangerous from the nuisance, and it has broken our pocket books, the fabric of our communities, and we are no safer for it. While this relief is already available pursuant to Proposition 64 for anyone with a conviction, it requires that they know it is available and to retain an attorney to file the expungement paperwork. A criminal conviction can be a barrier to employment, housing and other benefits, so instead of waiting for the community to take action, we’re taking action for the community.”
“This example, one of many across our state, underscores the true promise of Proposition 64 – providing new hope and opportunities to Californians, primarily people of color, whose lives were long ago derailed by a costly, broken and racially discriminatory system of marijuana criminalization,” said Lieutenant Governor Gavin Newsom. “This isn’t just an urgent issue of social justice here in California – it’s a model for the rest of the nation.”
In the state of California from 9115 to 2016 it is estimated that law enforcement made 2,756,778 cannabis arrests. Proposition 64 allows those convicted of marijuana crimes to petition to have their convictions decreased or erased, according to the Drug Policy Alliance, only 4,885 Californians have petitioned state courts to have their cannabis convictions expunged since the initiative’s passage. With the Department of Elections reporting that close to 75 percent of San Franciscans voted to legalize marijuana, three out of every four San Franciscans voted to provide relief to those convicted of marijuana offenses. In San Francisco, only 23 petitions for Proposition 64 reduction, dismissal or expungement have been filed in the past year. At present, the San Francisco District Attorney’s office has no active marijuana prosecutions.
As indicated by the disparities in San Francisco arrest and booking rates, the War on Drugs has created disparate arrest rates across racial groups. Multiple studies have found that rates of drug use and drug sales are commensurate across racial lines, where African American and Latino communities interact with the criminal justice system, including via arrests, bookings, and incarceration, at a rate far higher than their Caucasian counterparts.
According to the city’s Cannabis Equity Report, the increase in total cannabis arrests in 2000 was accompanied by a jump in the disproportionality of African American arrests. Arrests increased by 160 percent between 1999 and 2000, from 1,164 to 3,042. The percent of arrests featuring African American went up from 34 percent to 41 percent of all arrests, a 20 percent increase.
Despite the high percentage of African American cannabis arrests, African-Americans in San Franciscan comprised just 7.8 percent of San Francisco’s population in 2000. Even as the number of total arrests fell around 2011, after the downgrading of misdemeanor cannabis possession to an infraction, African American cannabis arrests as a percentage of total arrests wavered around 50 percent. According to census data, African Americans represented just 6 percent of San Francisco’s population in 2010.
Consistent with Proposition 64, the San Francisco District Attorney’s Office new policy will affect individuals who had suffered a conviction for:
-Possession of 28.5 grams or less of Marijuana pursuant to Health and Safety Code Section 11357; or
-Possession of 8 grams or less of Concentrated Cannabis pursuant to Health and Safety Code Section 11357, when he/she was 21 years or older, may have their record of conviction dismissed.
And individuals who had suffered a felony conviction for:
-Possession with Intent to Sell Marijuana pursuant to Health and Safety Code Section 11359;
-Sales, Furnishing or Transportation of Marijuana pursuant to Health and Safety Code Section 11360; or
-Cultivation of More than 6 Marijuana Plants pursuant to Health and Safety Code Section 11358;
may have their felony reclassified as a misdemeanor if:
-He/she has not suffered a conviction pursuant to Penal Code Section 667(e)(2)(c)(4);
-He/she is not required to register as a sex offender pursuant to Penal Code Section 290;
-He/she does not have two or more prior convictions under the same Health and Safety Code Sections of 11358, 1139, or 11360;
-The conviction did not involve the sale or attempted sale to a person under the age of 18;
-The conviction did not involve a person under the age of 21 in possessing for sale, selling or cultivating marijuana; and,
-The conviction did not involve the importation or exportation over state lines of more than 28.5 grams of marijuana.
Health and Safety Code Section 11361.8 manifests a presumption that a person applying for a dismissal, resentencing or redesignation to a misdemeanor satisfied the criteria for dismissal, resentencing or redesignation unless the party opposing the application proves otherwise by clear and convincing evidence. The application can be granted without a hearing. If the individual applying for resentencing or dismissal is currently serving their sentence, the court shall grant the petition unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.