In Furtherance of Justice: The Tangled Web of Marijuana Legalization
Rubicon's legal team helps our participants with legal assistance on a wide range of issues to equip them to remove barriers that may stand in their way.
This question and answer series – “In Furtherance of Justice” - with Rubicon's staff attorneys explores the many intersections between the law and breaking the cycle of poverty. This week, we talked with one of Rubicon’s Attorneys, Sarah Williams, about Proposition 64, which legalized Marijuana in the State of California in 2016.
Q: What is the history of marijuana legalization in California?
A: Medical marijuana first became legal back in the 90s in California. As time went on, California essentially decriminalized marijuana–law enforcement no longer was arresting people for using and possessing marijuana. Instead, they wrote tickets. The problem was that even this was pretty unfairly enforced, and it’s no surprise that the people who were predominantly getting ticketed were people of color. As the move toward legalization for recreational use gained traction, there actually was push back – not because many people wanted to see harsher punishments for use, but because they didn’t see a need for formal legislation. In affluent communities people just were not being policed for marijuana use.
Q: Was Proposition 64 the first attempt at legalization?
A: Prop 215 was passed in 1996. It legalized medical marijuana. We were the first state to pass that kind of legislation. In 2010, Governor Schwarzenegger signed legislation reducing possession of marijuana from a criminal misdemeanor to a civil infraction – decriminalization. In that same year, we voted on Prop 19, which would have legalized recreational marijuana use, but it was voted down.
Q: So on January 1, 2018, did it become legal to buy and use marijuana anywhere?
A: On November 9, 2016, the day after California voted on Prop 64, it became legal to possess, use or obtain no more than an ounce of marijuana. The parts of the law that impact setting up dispensaries and legally selling it weren’t figured out until January 1, 2018.
Q: Practically, what does this mean for the average person who tries to buy marijuana?
A: It means someone can give it to you, and you can legally possess it no matter where you got it, but you can only legally buy it from a licensed dispensary.
Q: How do you police this?
A: It’s tricky! The person selling it is guilty of a misdemeanor, even though it is totally legal to obtain and use marijuana recreationally.
Q: Does this still put a bigger burden or risk on less affluent communities and communities of color?
A: It does. There are plenty of hurdles to get a license to own a dispensary. If you have a criminal record, it’s pretty much impossible to legally sell the thing that you were cited for selling in the first place. There are many separate conversations happening in California on how to allow people of color and communities who have been selling to actually benefit from this legislation. It’s also challenging because marijuana conglomerates are already forming and taking over the industry.
Q: For the average Rubicon participant today, what does this legislation mean? What is the impact going forward?
A: Well, you’re still not legally allowed to just smoke on the street, but it does take away this thing that was hanging over people’s heads. If, for example, someone gets pulled over by the cops and they smell marijuana, that alone is no longer probable cause to search the car. You can’t smoke while you’re driving or drive high – that’s the same as a DUI – but lots of peoples’ cars smell like marijuana. Also, if an officer performs a stop-and-frisk and finds marijuana on you, as long as it’s within the limits of possession, it’s fine.
This legislation is also very similar to Prop 47 in that if you have a marijuana possession conviction, you can file paperwork with the court and it is not a conviction any more, or if you have a sales conviction you can go back, file paperwork and have it reduced to a misdemeanor. It’s not discretionary, the judge must grant the dismissal or felony reduction, but you do have to file the paperwork. Public Defenders are doing that paperwork for people, and it helps if there is a pendingcriminal case. If you no longer have a felony and you get convicted, your sentencing is going to be different. It can really change things for people.
Q: What do you think is the next piece of legislation that will make a huge impact for Rubicon participants?
A: Bail reform. I can’t tell you how many people who have sat here and said to me, “I just pled guilty, or no contest, because I just needed to get out of jail.” Your trial is supposed to happen quickly, but most people “waive time” to give their attorney time to actually prepare for the case, and during that time, if you can’t afford bail, you’re just sitting in jail. Often if you need to get out, you just plead to something. Maybe you didn’t do it, or maybe you know there isn’t enough evidence for conviction, but you do it anyways because you just want to move on with your life.
The problem is that many people don’t realize all of the collateral consequences of having that conviction on their record – in the moment, it’s just about getting out of jail. To me, bail reform is the holy grail of where we’re going with our criminal justice reform in California, because without it, these other laws are just not enough.