Updated: Feb 11
Anything less than certain designated amounts of weed should theoretically lead to an automatic expungement.
When residents in California voted to legalize recreational pot in 2016, they had to wait more than a year until retail shops could open up. Those who had been hoping to have their records expunged for cannabis crimes had to be even more patient.
Righting social justice wrongs from the war on drugs has become something of a necessity for legalization in 2020. New Jersey, for instance, passed an expungement bill with relative ease, even though it has failed repeatedly to have weed legalized through the state legislature. In Illinois, which started permitting recreational cannabis sales in January, Governor J.B. Pritzker was credited with creating the most progressive and comprehensive expungement procedures to date.
This wasn't always the case. Early states that legalized weed have almost had to work backward, retroactively drafting legislation to make it as easy as possible to give people impacted by draconian drug measures a clean slate. One of them is California.
Who Qualifies for Expungement and How Does It Work in California?
Tucked into Proposition 64, which officially legalized weed across the state, was a section that reclassified past cannabis crimes, but it did not offer many details on how exactly that would happen. Those with prior cannabis convictions could petition the court, a costly and arduous exercise, but there wasn't much of a framework to accomplish that.
However, in August 2018, nearly eight months after legalization, then-Governor Jerry Brown signed AB 1793 to streamline and clarify the steps for expungement. That went into effect about a year ago, and basically made expungement automatic for some who had previously been found guilty of marijuana possession.
District attorneys must review all relevant cases in each of California’s 58 counties dating back to 1975 by July 1, 2020, and “determine whether to challenge the resentencing, dismissal and sealing or redesignation”; it's predicted that up to 220,000 people could ultimately be affected, according to Los Angeles Magazine. Individual cities, like San Francisco, have already gone about expunging past convictions for both misdemeanors and felonies.
"There's this big list that was created by the state's Department of Justice, which was sent to all the prosecuting offices and district attorneys," explained Jeannette Zanipatin, a lawyer and the California state director of the Drug Policy Alliance (DPA).
The specifics of who qualifies to remain pretty confusing, but mainly, if you are 18 or older, in possession of more than 28.5 grams of cannabis or more, or 8 grams or more of concentrated cannabis, it constitutes as a misdemeanor. That can lead to six months in jail and a $500 fine, at maximum. (If you are under 18, it's simply an infraction, which could involve drug counseling and community service.) Essentially, anything less than the aforementioned amounts of weed should theoretically lead to an automatic expungement if you were previously charged for possession.
For any other cannabis-related crimes—whether it be a possession of greater amounts, transportation, and so forth—you will have to petition the court to get your record potentially expunged, or the charge reduced. The resentencing process can be difficult to navigate without legal assistance. (So seek legal assistance, if you can.) Some local initiatives, including the DPA, have held workshops and information sessions, and given guidance for Californians with pressing questions, especially those who don't have access or the financial means for representation.
In short, though, you'll have to get a copy of your record from the district attorney's office or courthouse where it's held, and then file your petition. The DA has a chance to look over the petition, but a judge will usually make the final call, typically without a hearing, but that's not guaranteed.
Again, if you meet the requirements for automatic expungement, you'll have a much easier go. What is probably the most productive evolution has come from Code for America, a nonprofit organization based in San Francisco, that has provided technology to assist the district attorneys in sorting through the hundreds of thousands of files: It helps by "reading and interpreting criminal history data from the California Department of Justice, and it can analyze eligibility of thousands of convictions in just a few minutes," according to Scott Gerber, a spokesperson for Code for America.
Gerber told VICE that a pilot program, Clear My Record, was launched last summer in five California county district attorney's offices: San Francisco, San Joaquin, Contra Costa, Los Angeles, and Sacramento. "To date, we have helped each of these pilot counties analyze their Prop 64 convictions, which help reduce or dismiss approximately 75,000 convictions."
In August, the nonprofit made the application available to every district attorney in all California counties.