Colorado could move to clear pre-legalization marijuana convictions statewide as soon as 2019

Black and Hispanic Coloradans have been disproportionately burdened by marijuana-related arrests

(Photo via Cannabis Culture/Creative Commons)

Boulder’s district attorney last week announced plans to vacate and seal thousands of convictions for marijuana possession prior to the drug’s legalization in 2012. This week, Mayor Michael Hancock announced he seeks to do the same in Denver.

But much more sweeping action could be on the horizon: Interviews with a half-dozen state lawmakers and incoming Attorney General Phil Weiser indicate strong momentum for a move to clear all criminal records statewide for the tens of thousands of people convicted of low-level marijuana offenses — possession, use, possession of paraphernalia — prior to the passage of Amendment 64, which legalized marijuana in the state and won 55 percent of the vote.

One legislator said she’s confident it’ll get done during the upcoming legislative session, which begins early next month.

“We will be introducing a bill” to clear low-level, pre-64 pot convictions, promised Rep. Edie Hooton of Boulder. “There’s no reason not to.”

At least nine states have recently made it easier for people convicted of certain marijuana charges to have their cases sealed or cleared altogether. Colorado is one of them, having last year passed a bill, co-sponsored by Hooton and Rep. Jovan Melton of Aurora, to allow people convicted of misdemeanor marijuana possession before Dec. 10, 2012, to petition to have their convictions sealed.

But that bill put the onus on the people convicted, requiring them to petition in court to have their cases sealed, and to pay a $65 fee in the process. It anticipated only 5 percent of eligible people would follow through.

Also, a sealed record becomes hidden from employers and leasing agents — even a minor marijuana conviction can do long-term damage to one’s job and housing prospects — but is still visible to the government. Sealing hides convictions from certain eyes, but is merely a half-measure, argued Art Way of the Colorado branch of the Drug Policy Alliance, a New York City- based nonprofit that works to “reduce the harms of both drug use and drug prohibition.”

“All they’re getting accomplished is sealing the records from private entities,” Way said. “On the more progressive end of the spectrum, you’d have charges dismissed or vacated and completely sealed not only from private employers or landlords but from the government as well.”

Hooton said the bill she expects will be introduced and passed this session would aim for that additional step.

“Clearing should be the way that we lead on this, not just sealing,” she said.

In arguing for such a measure, she added, “I think ‘Reefer Madness’ is a thing of the past.”

But that’s been far from true for minority populations, which bear a hugely disproportionate burden of Colorado’s low-level, pre-legalization marijuana convictions.

Harry G. Levine, a sociology professor at Queens College in New York, led a study in 2012 that tallied about 200,000 total arrests in Colorado between 1986 and 2010 for marijuana possession. In the decade immediately preceding the campaign for Amendment 64, the study found, black and Latino people accounted for 36 percent of all possession arrests, despite comprising just 23 percent of the state’s overall population, and despite reporting the use of marijuana less often, on average, than white Coloradans.

The study found that between 2002 and 2009, white people in Colorado were more likely than both black and Latino people to say that they’d used marijuana “ever,” “in the past year” and “in the past month.”

“We’re not as far away from Jim Crow and slavery as we think we are,” said Rep. Jonathan Singer of Longmont, who supports the effort to clear records statewide this session. “We have to be very cognizant of the fact that legalizing marijuana wasn’t just about making sure people who want to have a good time can do it without getting in trouble, but also about leveling the playing field for people who’ve always been disproportionately affected by these laws.”

Continued Singer, “To keep punishing people for something that is now not only legal but constitutional is just beyond me.”

Minority populations more likely to see marijuana-related arrests are also more likely to experience unstable employment and housing as a result of those arrests, argued Way.

“You’re talking about people already dealing with structural inequity, who are then being burdened by the collateral damage of a marijuana charge,” he said.

Mayor Hancock acknowledged this inequity when he announced that more than 10,000 convictions for low-level marijuana offenses dating back to 2001 would become eligible to be expunged.

“For too long, the lives of low-income residents and those living in our communities of color have been negatively affected by low-level marijuana convictions,” read a press-release statement from the mayor, who originally opposed Amendment 64. “This is an injustice that needs to be corrected, and we are going to provide a pathway to move on from an era of marijuana prohibition that has impacted the lives of thousands of people.”

Political conditions in Colorado would certainly seem ripe for the statewide action for which Democrats Hooton, Singer and others are prepared to fight. Democrats now control both chambers of the state legislature and the incoming governor, Jared Polis, has long been an advocate for progressive marijuana policy.

Polis received strong support from the marijuana industry during his campaign. This was in part because of his willingness to back marijuana-related legislative action that limits structural imbalances along race lines, said Wanda James, the state’s only black dispensary owner, ahead of the June primary election.

Mara Sheldon, spokeswoman for Polis, said he was unavailable to comment for this story, but did say the concept of clearing low-level pot convictions “is worth exploring.” She added, “(W)e are excited to see local law officials like Michael Dougherty in Boulder moving toward that.”

Attorney General-elect Phil Weiser said he’s not sure what role he might be able to play in the effort, but that he’ll be an active supporter.

“People’s lives are being hurt every day,” he said. “To have a record is to carry a burden with you, both psychological and, in many cases, with access to jobs. We need to give people a chance to rebuild their lives and start over.”

It’s not clear to legislators just how many people would be affected by a statewide record-clearing bill, though evidently the number is at least in the tens of thousands. Colorado’s Legislative Council found that between 2007 and 2012 alone, there were at least 11,554 convictions for marijuana-related activities that are now considered legal.

Said Singer, “That’s 11,000 lives that we could turn around or at least help give a fresh start to.”

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