Tenth Amendment Center: To the Governor: California Passes Bill to Allow People to Expunge Some Marijuana Charges

From Tenth Amendment Center

...from Tenth Amendment Center

SACRAMENTO, Calif. (Aug. 24, 2018) – On Wednesday, the California Senate gave final approval to a bill that would create a process to expunge or reduce the sentences of people charged under the state’s marijuana laws before recreational cannabis was legalized this year. Passage into law would take another step toward nullifying federal marijuana prohibition in effect in California.

Assm. Rob Bonta (D-Alameda) introduced Assembly Bill 1793 (AB1793) in January. Under the proposed law, the court would automatically reduce or dismiss marijuana convictions pursuant to the Adult Use of Marijuana Act (AUMA) unless prosecutors successfully challenge the dismissal of charges or sentence reduction.

In November 2016, voters in California approved a ballot measure legalizing marijuana for general use by adults. The law went into effect on Jan. 1. Under the AUMA, any person charged under previous California marijuana laws can petition for the recall or dismissal of a sentence, dismissal and sealing of a conviction, or redesignation of a conviction of an offense for which a lesser offense or no offense would be imposed under new law. Under AB1793, expungement would instead happen automatically without any petition necessary, effective July1, 2020. The bill creates a process for prosecutors to challenge the automatic dismissal or reduction of charges.

On Aug 22 the Senate passed AB1793 by a 28-10 vote. The Assembly previously approved the measure by a 43-28 vote. It now goes to Gov. Jerry Brown’s desk for his consideration.

In the past, we’ve seen some opposition to marijuana legalization bills because the new laws generally leave those previously charged and convicted unprotected. The introduction of AB1793 demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Opening the door clears the way for additional steps. You can’t take the second step before you take the first.

Passage of AB1793 would not only help those with prior marijuana arrests and convictions on their record get a new start, it would also further undermine federal marijuana prohibition. As marijuana becomes more accepted and more states simply ignore the feds, the federal government is less able to enforce its unconstitutional laws.

FEDERAL PROHIBITION

However, all of this remains prohibited under the 1970 federal Controlled Substances Act (CSA). Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Legalization of marijuana in California removed a huge layer of laws prohibiting the possession and use of marijuana in the world’s sixth largest economy, something that will be extremely difficult for federal prohibitionists to overcome. FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By legalizing cannabis, California essentially sweeps away the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

A GROWING MOVEMENT

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In January, Vermont became the first state to legalize marijuana through a legislative act.

With 32 states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.

Efforts to expand California’s marijuana law demonstrates another important reality. Once a state puts laws in place legalizing marijuana, it tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These bills represent more steps forward for patients seeking alternative treatments and a further erosion of unconstitutional federal marijuana prohibition.

WHAT’S NEXT

Gov. Brown will have 12 days from the date AB1793 is transmitted to his desk to sign or veto the bill. If he doesn’t act it will become law without his signature.

Mike Maharrey
August 24, 2018 at 12:59PM