California finds criminal record reforms easier said than done

| Andrew Ward

While both Canada and several U.S. states have vowed to create some sense of restorative justice to nonviolent marijuana offenders, few individuals have had their rights and records restored at this point. 

Pardons has been a commitment of Liberal lawmakers in Canada, with its no-fee, expedited process forecasted to affect roughly 250,000 individuals. However, June 2020 data from the Parole Board of Canada found that only 436 applications were received as of April 3, 2020. Of those submitted, 238 were approved for cannabis record expungement; 178 were classified as ineligible or incomplete, with a small number of applications somewhere in the process at the time of the tally.    

The severe shortcomings of Canada’s pardon program are all too common in cannabis markets, it seems. 

In California, one of America’s most attractive and lucrative markets, its lawmakers continue to talk about expungement while little action has taken shape. In the nearly two years since Assembly Bill 1793 passed, few have seen their records addressed. While producing more expungements than Canada, California is still underperforming in an area where it can’t. 

Like the cannabis market at large, California represents a massive stretch of land with varying communities, governmental processes, and priorities. While beginning to take steps forward, California, like Canada, represents a market that can and should do more towards creating restorative justice for nonviolent marijuana offenders.

What’s Been Holding Up California

While California has laid the legislative groundwork for creating criminal record reforms, its implementation in such a massive state is just the beginning of the hurdles. 

“This really boils down to the difference between a regulation as it is written and its subsequent implementation,” said Gretchen Schmidt, faculty Program Director of Criminal Justice and Paralegal Studies for the not-for-profit online institution Excelsior College

Schmidt elaborated, “When Proposition 64 was passed by California voters in 2016, it included provisions that enabled most people to reclassify their previous convictions.” Schmidt added, “… however, when the proposition was passed, there was no specific plan or timeline developed to facilitate expungement of records.”

Schmidt noted that AB 1793 aimed to ease some of the pressing concerns created after Prop 64’s passage.

Felicia Carbajal, a Los Angeles-based organizer for National Expungement Week (N.E.W.) and the founder of The Social Impact Center, echoed a similar point. Carbajal told StratCann, “The problem is that it is really easy to pass and implement expungements via legislation. However, there has been a decades-long over-investment in crime and punishment – and disinvestment in resources like expungements.”

That said, some parts of the state took efforts not long after the assembly bill passed. San Francisco and San Diego counties were just two regions to resentence past marijuana crimes automatically. However, major population centers, like Los Angeles, did not. District Attorney Jackie Lacey said that those seeking to have their record revised should petition the court rather than wait for the L.A. office to go through “tens of thousands of case files.” 

The suggestion came as the resentencing court process has been considered long and complicated. Price can also become a concern, with some spending upwards of $3,700 to have their record addressed. 

Record reform advocates like Carbajal agree that the current process is problematic, with the flow of information barely reaching people or color. 

“The process is ridiculously and unnecessarily complex,” said Carbajal of the state’s qualifications for expungement. The founder and activist detailed a list of hurdles, including a complicated system and a struggle to obtain one’s conviction documents. 

Meanwhile, Carbajal noted that systemic racism remains ever-present, notably when providing education on the expungement process. “Guidance on all these technicalities is not readily accessible to the Black and brown communities that are most impacted by these charges,” she stated. “This cumbersome process, along with the lack of information, is what created the uncertainty.”

Attempts at Improving the System

California has continued to lag in its expungement and record reform efforts. That said, the state has made a series of initiatives to expedite the process in recent years. Efforts to expedite the process have included the rollout of new application technology and lawmakers finally pressing on the matter. 

Some lawmakers, of late, have indicated that expungement is on their list of priorities. Carabajal said that this has not always been the case for record expungement. “Other states have advanced because they have prioritized expungements, valued the importance of helping people re-enter the workforce, and invested in the necessary resources for people to have access to documents to get expungements.” 

She added, “Simply put, expungement in California was an after-thought of creating a regulated cannabis marketplace.”

Later-adopter states seem to have learned from California’s errors as well. Excelsior’s Schmidt expanded on why other states have advanced past California’s expungement efforts. “Other states have learned from California,” Schmidt said. “Subsequent bills have become more specific and assigned roles, responsibilities and timelines to get records cleaned up and in line with the legalization laws.”

California, too, has taken steps towards catching up to where it should be in record reform. They include an October 2019 bill aimed at clearing convictions using technology, which is estimated to clear or seal two million records. California counties took action as well. Recent efforts include Sonoma County expunging 2,700 convictions in June 2020, while Los Angeles county announced 66,000 record dismissals earlier in the year.

Despite California’s recent progress, both the state and Canada represent slow to implement programs, where the infrastructure must be correctly in place before any action can occur. In the meantime, the lives of cannabis offenders – from their parental rights to employment to living situations – continue to be affected as they wait.