California Finally Clearing Cannabis Records. Will Lessons Be Learned?

    California officials have announced that they’re finally making substantial progress on clearing old marijuana criminal records—but they’re seven years too late. People have been waiting ever since voters approved cannabis legalization in 2016, in a measure requiring the state to clear prior records that are no longer criminal. But despite multiple efforts by politicians to make this process automatic, some courts are still dragging their feet.

    In June, California Attorney General Rob Bonta released a report detailing the state’s progress. Under a bill approved by lawmakers last year, government agencies now have stricter requirements and a deadline to seal records. The state Department of Justice must also measure and report on progress to the legislature every three months.

    As of April 6, according to the latest data, a total of 206,052 records, out of 227,650 eligible records statewide, have been sealed by courts. That’s over 90 percent—but with over 21,000 left to go. Twenty counties are challenging the clearing of some of these remaining records, arguing that “the person did not meet the eligibility requirements or presented an unreasonable risk to public safety.”  Los Angeles County alone is challenging 1,904 records, the highest total. But it’s not clear why the majority of the remaining records are still outstanding.

    Prop 64 didn’t require this process to be automatic. That was a critical omission.

    California voters passed Proposition 64 in November 2016, fully legalizing cannabis. Besides opening adult-use dispensaries, it provided for people to have their past cannabis records sealed if their conviction was for something no longer illegal, or to be resentenced if penalties were now reduced. But Prop 64 didn’t require this process to be automatic, meaning governments and courts would not do the work for you.

    That was a critical omission. Sealing a criminal record can be difficult if you’re not a legal expert and are just a regular person trying to work, raise a family or pay the bills. You must first be informed of your rights. Then you need to know if you’re eligible, and find the correct court that issued each of your convictions. The onus is on you to file a petition to the right place, and then to follow up to confirm that your record was sealed (or your petition rejected).

    Such barriers have in practice prevented many people from getting relief they’re entitled to, leaving them vulnerable to many forms of legal discrimination, from housing to employment to education.

    To address this, California lawmakers and former Governor Jerry Brown (D) in 2018 approved Assembly Bill 1793 to automate the process. It made government agencies and courts responsible for identifying all eligible records and sealing them—with nothing for impacted people to do. Around that time, technological innovations also gave governments tools to fulfill this promise. The nonprofit developer Code for America (CFA) created a computer program that could rapidly scan and seal thousands of electronic records. CFA estimates that about 40 percent of California district attorneys’ offices agreed to use its program, which it provided for free.

    But despite the political requirement and technological means, California failed to get the job done. People continued waiting years to get their records sealed.

    AB 1793 mandated that the process be completed by a July 2020 deadline. But the COVID-19 pandemic, technical issues, and what can only be considered political opposition to the objective left many California counties—both rural and urban—failing to meet their obligations, as Filter investigated and reported.

    Further complications apply. The state DOJ has a single criminal records database, but then individual record systems exist in each of California’s 58 counties. The DOJ records convicted individuals, but counties record separate convictions. So if you had three marijuana convictions in different California counties, there would be one record with your name and charges at the DOJ—and three separate records for each case held by county courts. Successfully sealing a record means matching all of these up; the court initially seals any records it has, then notifies DOJ to update its database. And then there’s the issue of older paper systems that were never digitized, which slows things down even more.

    “We have fallen short of that promise … We have a moral obligation to get this right.”

    So lawmakers came back to the table and, in September 2022, passed Assembly Bill 1706, sponsored by Assemblymember Mia Bonta (D) (who happens to be the wife of AG Rob Bonta, who sponsored AB 1793 when he was a lawmaker). AB 1706 created stronger requirements for courts to complete record sealing, by “[providing] clear deadlines and guidance,” and “[adding] oversight and progress reporting, to ensure that bureaucratic delays and lack of transparency do not bar deserving individuals from relief any longer.” For any eligible criminal records that DAs didn’t challenge before July 2020, the courts were required to seal them by March 1, 2023, with the DOJ updating its system by July 1.

    “It is unimaginable and unacceptable that years after we legalized cannabis, Californians are still waiting to get their records cleared,” Mia Bonta said in a press release. “We promised this to tens of thousands of Californians, and to date, we have fallen short of that promise. My bill finally provides that relief and guarantee individuals are not denied opportunities to succeed in life because of minor cannabis records. We have a moral obligation to get this right.”

    An analysis by California NORML reveals which counties in the states are doing the best—and worst—at sealing cannabis records so far. Six counties have completely sealed all eligible records, and several others—notably San Francisco and San Diego County—have nearly completed the job. But Los Angeles County has not sealed any records this year, with over 2,200 outstanding. Progress is also slow in Orange, San Bernardino and Alameda Counties, which have collectively left nearly 10,000 records untouched this year. The least compliant government is Imperial County, which has cleared less than 15 percent of its 1,767 eligible convictions.

    The work is set to continue for the next year, and we will at least now receive regular updates under AB 1706.

    A new chapter to this story has meanwhile opened. Last year, California lawmakers approved a separate bill, SB 731, which offers sealing for nearly all criminal convictions and arrests in the state, cannabis or otherwise. It makes California the first state in the nation to go this far, a historic milestone.

    A person can now apply to electronically seal their record four years after completing their sentence, in the absence of any new arrest. Criminal histories will still be shared with police, school districts and other entities. Nonetheless, it is still a game-changer that could bring relief to an estimated one million-plus Californians.

    With this exciting prospect, it can only be hoped that valuable lessons have been learned from the state’s dispiriting cannabis-expungements saga.

    “It opens up a whole new avenue for folks who have cannabis convictions that didn’t qualify under Prop 64, and this goes way beyond just marijuana convictions,” Felicia Carbajal, executive director of the Social Impact Center, told Filter. Carbajal has been involved in cannabis expungement and justice efforts in Los Angeles and statewide.

    “It affords anyone who went to prison in California for a conviction—excluding sex offenses—an opportunity to petition the courts to get their record expunged,” she continued. “California is trying to push really progressive policies.”

    With this exciting prospect, it can only be hoped that valuable lessons have been learned from the state’s dispiriting cannabis-expungements saga.

    “Those of us as advocates need to continue to do the work,” Carbajal said, “and push for legislation that’s as comprehensive as possible, and give everyone who’s been harmed by the War on Drugs, independent of having nonviolent cannabis convictions, an opportunity to move forward with their lives.”



    Photograph by Christo de Klerk via Flickr/Creative Commons 2.0

    • Alexander is Filter’s staff writer. He writes about the movement to end the War on Drugs. He grew up in New Jersey and swears it’s actually alright. He’s also a musician hoping to change the world through the power of ledger lines and legislation. Alexander was previously Filter‘s editorial fellow.

    • Show Comments

    You May Also Like