07.17.2016
policy

If Weed Goes Legal, Do People in Prison for Weed Get Out?

Some maybe-good news from California.

John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.

Q: If weed were legalized in California, what would that mean for people who are currently incarcerated on marijuana charges?

California voters will have an opportunity to enact meaningful drug policy reform this November by approving the Control, Regulate and Tax Adult Use of Marijuana Act (a/k/a, the Adult Use of Marijuana Act, or the AUMA). 

The ballot initiative includes specific provisions that would provide some relief for people who are currently serving sentences for activities that would have been legal (or less-harshly penalized) under the act. It also provides an opportunity for people who have completed their sentences to petition the court for a retroactive dismissal or reduction of charges.

In a nutshell, the AUMA will permit adults 21 and over to cultivate up to six plants and to possess up to one ounce of flower and up to eight grams of concentrated cannabis. It reduces the penalties for a variety of marijuana-related activities. Things that had been felonies will become misdemeanors. Things that had been misdemeanors will become infractions, and some activities will become completely legal for adults (within some parameters).

Under current California law, possession of more than an ounce of flower for personal use is a misdemeanor, punishable by up to six months in jail and a fine. That will not change under the AUMA. Possession of under an ounce is currently an infraction, punishable by a $100 fine. It will become totally legal for adults 21 and over.

Individuals who are currently serving sentences for marijuana-related crimes may petition the court for resentencing to bring their punishments into line with the newly-adopted regulations.

Cultivation, possession with intent to distribute, and sales are all currently felonies in California. Cultivation of more than six plants, possession with intent to distribute, and sales of more than an ounce will all become misdemeanors in most cases if the AUMA is approved. Sales of less than an ounce will become an infraction.

The AUMA provides that individuals who are currently serving sentences for marijuana-related crimes may petition the court for resentencing to bring their punishments into line with the newly-adopted regulations. When the court receives a petition for resentencing, a judge must approve it—unless the court determines that doing so would pose an unreasonable risk of danger to public safety.

If a person has already completed serving a sentence for some activity that has been legalized or for some felony that has been redesignated as a misdemeanor or an infraction, he or she may petition the court to retroactively reduce or dismiss the charges accordingly. The court must presume that the applicant is eligible for the requested relief unless the DA can prove otherwise.

A provision of the AUMA says that when a felony is retroactively reduced to a misdemeanor under the act, it shall be considered a misdemeanor “for all purposes.” Presumably, this would immediately restore voting rights and would enable the individual to hold certain state-issued licenses. It remains to be seen whether or not a retroactive reduction would restore gun rights. The federal government prohibits individuals from owning, purchasing, possessing, or having access to firearms if he or she has ever been convicted, pleaded “guilty” or “no contest” to a felony. That argument might go either way.  

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