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If Cannabis Becomes Legal, What Happens to Everyone in Jail for Weed?

Look at California as a test case

Last summer, Democratic Sen. Cory Booker from New Jersey introduced the Marijuana Justice Act, a federal weed policy that would take pot off the list of controlled substances, end federal prohibition and create paths to expungement for people previously convicted of low-level marijuana crimes. And just last week, Democratic House Reps. Barbara Lee and Ro Khanna from California re-introduced a version of Booker’s bill that called for nationwide legalization. (This, of course, came on the heels of Jeff Sessions rescinding the Cole Memo, the piece of paper that prohibited federal prosecutors from interfering with the production and sale of weed and allowed for the proliferation of the recreational industry.)

Within Congress, the effort to revamp our drug laws as they pertain to weed is bipartisan. For instance, on Wednesday, Congressman Matt Gaetz, a Republican from Florida, addressed the House of Representatives to emphasize how backward and detrimental he found Sessions’ decision. His colleague, Rep. Carlos Curbelo, another Republican from Florida, went as far as to say Sessions “has actually done a great favor to those who operate outside the law and is punishing those who are actually trying to control this substance.”

This rallying cry from both sides of the aisle has many observers predicting that prohibition will end at the federal level sooner than if Sessions had kept the Cole Memo in place.

Allison Margolin, known as “L.A.’s dopest attorney,” is one of those people. As the only cannabis lawyer considered a SuperLawyer by Thomson Reuters, an achievement based on peer-review, Margolis works on criminal defense cases as well as helps clients correctly license their weed businesses. Although the current battle surrounds ending prohibition writ large, I was most interested in talking to her about the third prong of Booker’s proposal — paths to expungement for Americans convicted of low-level marijuana crimes, particularly people of color inequitably targeted by the War on Drugs.

It seemed obvious to me that if weed becomes legal federally, it would only be fair to wipe away the convictions of those whose crimes would be anything but had they worked or smoked in a post-prohibition world, which is what is currently happening in California.

As lines for recreational-sales dispensaries wrap around the block in California, a lot of people are uncomfortable with the proliferation of this retail experience in comparison to the number of old-school producers and distributors of weed currently in jail for marijuana crimes.
In terms of federal prison, that’s definitely accurate. But here in California, there’s hardly anybody in prison for marijuana anymore because of the reforms in our system that have happened over the last decade. And once Prop 64 came into effect in November 2016, all old marijuana offenses are now considered either misdemeanors or nothing. Similarly, new marijuana offenses are only misdemeanors unless they happen out of state. An awesome part of living in California is this liberal consciousness in regards to the War on Drugs that’s coming both from a financial and progressive point-of-view and motivation.

So does that mean there were cannabis-focused expungement policies in place before November 2016 and Prop 64?
Not really. Or at least there wasn’t anything to this degree, because what Prop 64 offers is far more than expungement. A classic expungement is where you can tell an employer that you don’t have a conviction, but it doesn’t really erase the conviction for purposes of law enforcement and everything else. Now, it’s literally off your record, which makes it very revolutionary. For example, I had a client who was a Dreamer. We had to go through deportation hearings because of her felony marijuana conviction. But because of Prop 64, I got the courts to totally dismiss it, and now, she’s out of the deportation proceedings.

I’ve read that up to a million Californians are eligible for this, but how is that eligibility being determined?
Basically, anybody with any conviction from marijuana from before November of 2016 is eligible — unless they have a super strike, too, which basically means murder or arson. But while people can go to expungement clinics, I still suggest they see a lawyer. A lot of things that will just be reduced to misdemeanors can be totally dismissed with a lawyer’s help.

In my “State of Drugs” piece last month, I wrote about Oakland’s Equity Permit Program, a set of measures that help people with past weed convictions get into the legal industry. It’s especially important because it helps those harmed by the War on Drugs, especially African Americans and Latinos.
We have a similar program in L.A. now too. That program is a direct result of Prop 64. What’s awesome about Prop 64 is that it was funded by the Drug Policy Alliance whose goal is bigger than marijuana. Its goal is to decriminalize drugs and to make reparations for what the War on Drugs has done to society. So because the Drug Policy Alliance funded it, Prop 64 has language that promotes cities enacting these types of programs. In terms of legislation, this is the first time that’s ever happened and it’s very exciting.

California, in particular, has so many urban centers in which the War on Drugs really harmed society. For example, in addition to the war on marijuana, the war on crack cocaine absolutely decimated South Central. So culturally, this desire for justice when it comes to drugs and policing goes way beyond weed.

It seems like in California, many people who weren’t necessarily looking to partake in the cannabis industry as a producer or consumer supported Prop 64 because of the restorative justice element.
I mean, I don’t get how you can be against it. So many aspects of Prop 64 can improve our entire criminal justice system. But of course, I believe in legalizing all drugs. Prop 64 may be less than that, but that’s fine, because this is a progressive thing. And for right now, it’s awesome. As long as you’re not transporting weed out of state, nobody in California is going to face prison time for weed anymore, no matter what the quantity of possession is.

What do you think about the version of the Marijuana Justice Act that was recently introduced in the House?
For adult-use weed, it’s basically what the Rohrabacher-Blumenauer amendment was for medical weed, meaning it would cover all kinds of activities and serve as a major protection. The process is starting. Congress has already defunded the DEA in respect to weed, and there’s going to be more of that happening in the future. Sessions can’t do anything with respect to medical so he’s basically alerting Congress that if they don’t do anything to protect adult use in these states, there will be enforcement against it. That’s motivating positive change like the Marijuana Justice Act.

It makes sense. Every state with medical marijuana sees a decrease in the use of opiates and a positive influence on the economy. It also seems to decrease crime.
Since the inception of the United States, we’ve been enveloped in this religious puritanism. It’s wonderful that we’re now asserting our right to recreate, our right to use. People want to alter their consciousness and that’s okay. Marijuana is a very good thing for society.