California Governor Jerry Brown signed Assembly Bill 1793 on Sunday, Sept. 30, 2018. The bill will require the California Department of Justice (DOJ) to review past convictions made between 1975 and 2016, and determine if they violate the legal guidelines created by the Adult Use of Marijuana Act. In other words, would they be convicted today, following the legalization of cannabis? If not, the DOJ is required to expunge their record, meaning that the DOJ will act as though the conviction never happened, and the individual in question may not have to disclose that they were convicted of a felony.
“This is always a question for us in our legal system, is when we change the criminal law, should it have a retroactive effect?” said Visiting Assistant Professor of Political Science Andrew Dzeguze. After the passage of Proposition 64, California citizens could petition to have their records expunged of cannabis-related charges, but relatively few people actually went through the petition process. Dzeguze said that people may not have petitioned because their conviction has not really affected their lives, though it’s also possible they do not have the money to pay for a lawyer. “There’s no provision for you to get a lawyer,” said Dzeguze. “No state pays for lawyers to expunge people’s records.”
Dzeguze expects some counties — such as Los Angeles County, East Bay County, Alameda County, San Francisco County, and probably Marin County — to follow the bill freely and willingly turn over conviction records, but he also suspects that some more conservative counties — possibly Corine County, Humboldt County, San Diego County, and Orange County — may fight the bill. “The reason I [believe this is] everywhere that’s legalized marijuana, there have been localities that want to resist the legalization of it,” said Dzeguze. “Cops in counties and District Attorneys are different all over the state, and they are a function of local politics … If you have run as a culture-warrior-slash-drug-warrior, then the people who support you think that way, then it’s absolutely in your interest [to oppose Assembly Bill 1793].”
Dzeguze feels that this is representative of a larger pattern in American politics, in which “draconian” laws are implemented, then stepped back. He pointed out that this occurred all the way back when the Adams Administration implemented the Alien and Sedition Acts at the end of the 1700s, only to have the Jefferson Administration give a blanket pardon to everyone awaiting trial for sedition. For a more recent Federal example, he points to the Obama administration rolling back the sentence enhancements implemented as part of the war on drugs in the 1980s and 1990s. Dzeguze points specifically to clemency given by the Obama Administration provided to many individuals convicted when sentences for possession of crack cocaine were more extensive. While providing clemency and expunging a record are not equivalent, Dzeguze views this as a comparable example of a government — in this case Federal rather than State — responding retroactively to a change in criminal drug laws.
The actual effectiveness of this bill will become clear with time, and its precise wording may be challenged. “If I worded [a question on an application] ‘Have you ever been arrested?’ versus ‘Have you ever been convicted?’, then an expungement doesn’t affect the fact you were arrested, and you need to be honest and forthright about that,” said Dzeguze.
Whittier College Director of Student Rights and Responsibilities and Lead Title IX Investigator Siobhan Skerritt is sceptical that the bill will actually help citizens already incarcerated on drug charges. “People that have these charges have been in the system for so long that if they gained other infractions or other charges, the cannabis thing isn’t even going to matter if they have to still serve out their time for that,” said Skerritt.
Skerritt is also concerned about how much this bill will help people from impoverished communities of color. “I don’t know if I have a lot of hope that this [bill] is going to do what it says it’s going to do for people from my demographic or similar demographics,” said Skerritt, who identifies as an Afro-Latina woman. “Low socioeconomic, black and brown bodies, first generation American, things like that.”
Dzeguze believes that the passage of this bill in California relates to the politics of immigration. If a U.S. immigrant — even an immigrant in the U.S. legally — is found guilty of committing a crime, they are at risk of being deported. “The Trump administration has made it very clear that if you’ve done anything wrong, they’re going to use that as a justification [to] say you’re a criminal, and that’s the basis for deportation,” said Dzeguze. This bill may be a way to keep the California state government from having to turn over criminal records of immigrants with drug charges to the federal government, and help maintain California’s status as a sanctuary state.
“I’m hopeful that [Assembly Bill 1793 is] going to do the right thing for those who have been wrongly tried and prosecuted,” said Skerritt. “ [But] I’m skeptical that the system still is not made for those from marginalized groups. And I’m afraid that this is not going to give us what we hope it would.”