Colorado Gov Given Power to Expunge Marijuana Crimes, 8 Years after State Legalization

By: Sarah Johnson

Earlier this month, on the last day of the Colorado session, the legislature passed a bill granting Colorado Governor, Jared Polis, the right to expunge low-level marijuana crimes from the records of people arrested or charged before it was legalized in 2012. Colorado was one of the first two states to legalize marijuana, and a town in Colorado was one of the first places in the nation to decriminalize possession of marijuana, but they have not taken meaningful action on expungement of prior convictions until now.

A Quick Look at Marijuana Legalization History in Colorado

Colorado’s first move towards legalization came in 1975, when the state made possessing less than 1 ounce a petty offence, with a $100 fine. Colorado was one of 10 states to decriminalize marijuana, based on a federal commission report, The National Commission on Marijuana and Drug Abuse, from 1972 from the Nixon administration. The report, known also as the Shafer Commission, recommended Congress lessen penalties for marijuana use and possession and rely on other methods to discourage heavy use.

Colorado’s political system includes a direct initiative process that allows citizens to put amendments to the state constitution on the ballot for a general vote. In 2000 Colorado legalized medical marijuana with Amendment 20, known as the Medical Use of Marijuana Act. With 54 percent support from voters, the law allowed marijuana use “for persons suffering from debilitating medical conditions”, including cancer, glaucoma, seizures, severe pain, and more.

In 2006, Colorado attempted to legalize recreational marijuana for the first time with Amendment 44. This amendment was voted down by 59 percent of Coloradans and would have legalized the possession of up to one ounce of marijuana for recreational use for those 21 or over. In 2009, residents of the town Breckenridge, a small ski resort town, decriminalized marijuana. Townspeople voted to allow people 21 and older to possess 1 ounce or less of marijuana, but prohibited smoking in public.

Then, on November 6, 2012, 55 percent of Coloradans voted to pass Amendment 64. This made Colorado one of the first two states to legalize recreational marijuana (Washington also passed a recreational marijuana law around the same time called Initiative 502 which was similar to Amendment 64). The ballot language for Amendment 64 read:

Shall there be an amendment to the Colorado constitution concerning marijuana, and, in connection therewith, providing for the regulation of marijuana; permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana; providing for the licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores; permitting local governments to regulate or prohibit such facilities; requiring the general assembly to enact an excise tax to be levied upon wholesale sales of marijuana; requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund; and requiring the general assembly to enact legislation governing the cultivation, processing, and sale of industrial hemp. 

Essentially, the amendment allowed anyone 21 and older, possessing a valid government ID, to purchase, smoke, and possess marijuana for recreational use while within the state of Colorado. State residents were allowed purchase up to 1 ounce in a single transaction.

Since the legalization of recreational marijuana in Colorado, a raft of important legislation for its assimilation into “normal life” has been passed. HB1325 was passed in 2013 which limited THC blood levels while driving (5 nanograms of active THC per milliliter). The the Colorado Retail Marijuana Code (HB1317), also passed in 2013, outlined licensing fees, inventory tracking, security requirements, waste disposal, packaging and advertising, and more. Proposition AA, which was placed on the ballot (via HB1318) allowed voters to decide upon the proposed a tax on recreational marijuana sales at 25 percent. This tax consists of a 10 percent sales tax on top of a 15 percent excise tax on statewide recreational marijuana sales.

But in the years since legalization, one huge concern has been missing from the assimilation process; the expungement of the records for those convicted of possession of marijuana that is no longer a crime within the state, who so happen to disproportionately be people of color.

According to DrugPolicy.org, there were 210,000 marijuana possession arrests in Colorado from 1986-2010. The report also found that although white people made up the majority of the arrets (63%), Latinos where arrested 1.5 times the rate of White people, and Black people were arrested 3.1 times the rate of White people. In the early 2000s, Black people were 3.8% of the population of Colorado, but made up 10.8% of marijuana possession arrests, while Latinos were 19% of the population, but 25% of the marijuana possession arrests. Here are two illuminating graphs showing the difference between marijuana use, and marijuana possession arrests in Colorado.

According to a report released in June of this year by Denver’s Cannabis Business and Employment Opportunity Study, there are a lot of white people in marijuana. The study showed 74.6% of owners of licensed cannabis businesses within city and county limits are white and are 68% of employees working in the industry are white. When looking at people of color, Hispanic, Latino and Spanish residents account for 12.7% of cannabis business owners and 12.1% of industry employees, and Black residents make up 5.6% of ownership and 5.9% of industry employees. White people make up 53% of residents, while LatinX people make up 30%, and Black people make up 9%.

What is CO HB1424 – Social Equity Licensees In Regulated Marijuana

HB1424, was originally drafted to create a state definition for which businesses qualify as cannabis “social equity” license applicants. Social Equity “is a state of affairs in which all people within a specific society or isolated group have the same status in certain respects, including civil rights, freedom of speech, property rights, and equal access to social goods and services.” The bill changes the term “accelerator licensee” in the “Colorado Marijuana Code” to “social equity licensee” and alters the qualifications. This is an attempt to open the marijuana industry to people of color, who, as we have seen, have been disproportionately arrested for marijuana possession and have disproportionate barriers to entry into the business. Part of the way the bill does this is expand the pool of who’s allowed to get marijuana business licenses to allowing residents arrested or convicted on a marijuana offense, subject to civil asset forfeiture from a marijuana offense, or lived in an area designated as high crime or economically disadvantaged to now be included.

A social equity licensee may participate in the accelerator program on the premises of a retail marijuana licensee whereby the social equity licensee receives assistance from an experienced retail marijuana licensee. The bill expands the accelerator program to include a retail marijuana store licensee. A retail marijuana licensee participating in the accelerator program and a social equity licensee may be entitled to incentives from the department of revenue or the office of economic development and international trade.

Longmont Representative, Jonathan Singer, said “When we talk about a business licensing and equity model, we need to be thinking about people behind left in the War on Drugs. There are people who are still paying for their crimes that are now legal and constitutional.”

The Senate then attached an amendment to HB1424 which allowed for the state Governor (at this time, Governor Jared Polis) to pardon people with prior marijuana possession convictions. When this idea was first discussed, the state was looking to either automatically clear these convictions or require qualifying people apply for expungement. A bill passed in 2017 allows people who were convicted of misdemeanors for the use or possession of marijuana to petition for the sealing of criminal records relating to such convictions if their behavior would not have been a criminal offense if the behavior had occurred on or after December 10, 2012.

The amendment will allow the Governor to work with the Colorado Attorney General’s Office to implement the expungement process to mass-pardon marijuana convictions for possession of 2 ounces or less. It also requires them to implement an application fee for pardon applicants.

The bill’s sponsor, James Coleman, told Marijuana Moment,

I’m really pleased, as you’d imagine, that we were able to get this kind of legislation passed in this amount of time. I think it’s a testament to the amount of work that our stakeholders did outside of the building, but also a testament to my colleagues in the legislature who agree that we should have an opportunity for folks to work equitably in an industry that is booming and is really taking a lead here in Colorado.

The bill is still awaiting Polis’s signature.

 

One thing is clear to me: it is far past time that some actionable legislation was passed and implemented when it comes to small possession records expungement in general, but especially when we look at the marijuana industry, how white it is, and how these types of convictions can be barriers to entry to the industry, and to generally having a job.

Cover Photo by Ryan Lange on Unsplash

 

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