If Arizona Legalizes Weed, Top Prosecutors Would Be Key To Clearing Past Convictions

Arizona could soon join 11 other states that have legalized recreational marijuana. In two weeks, residents will have a chance to vote on Proposition 207, a ballot initiative that would allow people 21 and older to possess up to an ounce of marijuana, reduce the criminal penalties for other marijuana possession offenses, and pave the way for hundreds of thousands of people to expunge past convictions. If it passes, the state’s top prosecutors could play a huge role in upholding the law and facilitating—or thwarting—people’s petitions to clear their criminal records.

“In Pima and Maricopa [counties], Democrats are running in support of expungement and talking about how they will direct folks in their office to process mass expungements,” said Stacy Pearson, a political consultant for the campaign to pass Prop 207. “I think who is in office is critically important. How these prosecuting agencies respond to petitions is going to be key.”

Legalizing recreational marijuana and providing a path to expungement would be a major shift for Arizona, where possession of even a small amount is a felony punishable by up to two years in prison and a $150,000 fine. Though a proposition passed in 1996 prevents people from being sent to prison for their first or second marijuana possession offense, people were often instead diverted to the Treatment Assessment Screening Center (TASC)—a program facing a federal civil rights lawsuit for allegedly being a money-making racket that extorts poor people by threatening them with felony prosecution. Adel scrapped TASC and switched to a different felony diversion program, and the TASC lawsuit is moving toward a settlement.

Still over 100 people are currently incarcerated for marijuana possession in Arizona, and more than 15,000 people were arrested for marijuana possession statewide in 2018. ACLU reports on arrest, charging, and sentencing data have found that people of color are disproportionately affected by marijuana criminalization: Black Arizona residents are about three times more likely to be arrested for marijuana offenses than white residents, and Black and Hispanic people prosecuted by the Maricopa County Attorney’s Office face longer sentences for marijuana possession than white people.

“These laws have impacted people of color far more than white folks despite white people using marijuana at comparable rates,” said Jonathan Udell, the communications director for Arizona NORML and an attorney at Rose Law Group. “Arizona is the one state where possession of any amount of marijuana constitutes a felony. That has all kinds of impacts on people. Literally just possessing a small amount of a plant can ruin the rest of your life.”

Besides suffering the criminal penalties, like prison time and steep fees, a person with a marijuana conviction on their record in Arizona can have difficulty finding a job (and the healthcare that comes with it) and housing. Immigration status, eligibility to receive public funds like welfare benefits and student loans, and voting rights can also be threatened by a felony conviction. 

Whoever is elected Maricopa County attorney this November will have a significant effect on the way marijuana continues to be prosecuted in the state, and could either help or hinder the effort to expunge past criminal convictions. (The county is home to Phoenix and 4.5 million of Arizona’s nearly 7 million residents.) Julie Gunnigle, the Democratic challenger for the top prosecutor role, has pledged to do everything she can to help people expunge marijuana possession convictions if Prop 207 passes, while the incumbent county attorney, Republican Allister Adel, has said only that she would enforce the new law if it passes and did not respond when asked if she would do anything to support the expungement process.

If Prop 207 passes, Arizonans can submit petitions to expunge past marijuana convictions to the court. Certain marijuana offenses would be eligible for expungement, and anyone who applies for expungement will be considered qualified unless proven otherwise. The onus is on the prosecutor’s office to contest the petition. If it doesn’t contest the petition within 30 days, the conviction is expunged, Pearson, the political consultant, said.

Through her campaign manager, Gunnigle told The Appeal she supports Prop 207 and thinks the opportunity for expungement included in the initiative is especially important. She said she is committed to creating an expungement process that “is both universal and automatic.” And if the measure passes, Gunnigle said she would dismiss any pending cases involving possession of less than one ounce of marijuana.

“On day one, I would dismiss every pending low-level marijuana case, and make office policy that no personal-use amounts of cannabis will be charged and [that] no objections will be filed when those convicted of such offenses move to set aside their convictions,” she said in a March questionnaire from the American Civil Liberties Union of Arizona. In a second questionnaire in August, Gunnigle said, “I will do everything possible to support people seeking to expunge old marijuana possession convictions.”

Adel’s campaign spokesperson did not directly respond when asked whether she supports the measure, and whether she would dismiss any pending cases involving possession of less than one ounce of marijuana if it passes. 

“Proposition 207 is not retroactive,” the spokesperson, Lorna Romero, said instead, “and if it is to pass it will be the law going forward, and one that the office will follow and implement according to the letter of the law.”

The “letter of the law” does leave a few openings where, should Arizona county attorneys choose to do so, prosecutors could still seek harsh penalties for marijuana possession. After Arizona legalized medical marijuana in 2010, former Maricopa County Attorney Bill Montgomery tried to get around the law by threatening to prosecute medical marijuana patients for concentrates. In 2013, Montgomery brought charges against a medical marijuana patient over one piece of THC-infused candy. Advocates fear the wrong county attorney could continue to flout the will of the voters should Prop 207 pass. Before she was appointed to the county attorney role last year, Adel said Montgomery had “served our county well” and that she’d “be honored to build upon that legacy.” 

Prop 207 would also allow adults over the age of 21 to grow up to six marijuana plants at their home. It’s possible that the marijuana plants you could legally grow in your home could produce more marijuana than the one ounce you are legally allowed to possess. 

“There’s some open-ended legal questions there,” Udell from NORML said. “That raises some concerns in my mind. … I think if you had someone like Allister Adel in office, there’d be more of a chance that she could go after people for stuff like that.”

Gunnigle said it is up to the state legislature to pass laws to close the loopholes if Prop 207 passes, but that she would decline to prosecute “personal use cases of marijuana, including concentrates.”

Even if Prop 207 doesn’t pass, Gunnigle has pledged not to prosecute people for personal possession of marijuana. She told The Appeal that if she is elected, she would “issue a memo directing all prosecutors not to charge personal use marijuana cases” on her first day in office, and “review and dismiss all pending cases that were previously charged.” 

Adel’s campaign did not directly respond when asked whether she would do anything to ensure the legal loopholes are not used to prosecute people harshly for marijuana. She has also not said whether she would decline to prosecute all cases of personal possession of marijuana. 

“Maricopa County [Attorney] Allister Adel believes in a ‘treatment first’ approach where we need to look at the offender and not the offense,” Romero told The Appeal. “For low-level drug possession crimes, her priority is to get the defendant services they need to treat addiction. These types of crimes are ideal for the Felony Diversion Program she established.” 

Under that felony diversion program, people can get their drug possession charges dismissed—as long as they successfully complete the program. In August, Adel also implemented a new policy allowing anyone who was arrested for simple marijuana possession to avoid prosecution if they obtain a medical marijuana card. Critics have pointed out that the policy only helps those who can afford a card.

A ballot measure to legalize recreational weed in Arizona failed by a slim margin in 2016. Now, it seems more likely that the measure could pass. Several recent polls have shown majority support for Prop 207. A recent poll from Data For Progress and The Justice Collaborative Institute found that a majority of likely voters in Maricopa County are more inclined to vote for a county attorney who supports ending prosecution for marijuana possession offenses and expunging previous possession convictions.  (The Justice Collaborative Institute and The Appeal are both independent projects of The Justice Collaborative.)

Justin Strekal, NORML’s political director, said prosecutors worked to expunge convictions right away in some jurisdictions where recreational marijuana has been legalized. “In other jurisdictions,” Strekal said, “that justice is delayed, and the collateral consequences of having criminal records continues to hold people back.”

“That’s where the impact of having partners in local office is absolutely critical,” said Strekal. “It can mean the difference between life and death for these individuals when holding on to these criminal records can prevent people from getting a job that could get them healthcare.”