California Legalized Cannabis, But What Happened To Criminal Records?

What is happening with cannabis legalization? Why are they keeping innocent people locked up?

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As it has become well known, the west coast is big on the legalization front, but what about the people who have a criminal record? Are they not allowed to be productive members of society?

It is probably the most infuriating thing in the world to see innocent people, mostly men of color, locked up because of something we are doing every single day. You, reading this, how much have you smoked today? Did you fear for your life while you smoked? 

I’ll go out on a limb here and say that’s a no. We smoke every day and yet there are no repercussions for our actions because it is already legal in some states. You can literally buy weed online!

California has become one of the most popular states to legalize cannabis, but what about the black and brown men and women still incarcerated for it? Do they not deserve a chance at a better life?

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Prop 64

Photo by Fokusslert / Adobe Stock Photo

The Control, Regulate and Tax Adult Use of Marijuana Act, Proposition 64 was voted on by the majority of the state’s voters. Prop 64 decriminalized the personal possession and use of marijuana. So what’s between the lines? Where’s the twist? It’s obviously not that simple.

Proposition 64 legalizes specified personal use and cultivation of marijuana for adults 21 years or older. It reduces criminal penalties for specified marijuana-related offenses and authorizes resentencing and sealing of prior, eligible convictions. The proposition includes provisions on regulation and taxation of legalized use. Emphasis on eligible as this is where it gets messy.

Expungement Or Deduction?

“If your previous marijuana conviction is expunged under Proposition 64, the conviction is dismissed and the case sealed. The crime is deemed legally invalid as though it never occurred in the first place.” Marijuana expungement is basically a clean slate. While a reduction is just that, reducing the conviction.

Felonies can be reduced to a misdemeanor or an infraction depending on the severity of any current and/or prior conviction(s). 

Moreover, Prop 64 Resentencing Procedures and Other Selected Provisions created some seriously twisted legislation around a person’s criminal record. Having to search through the Penal Code is a pain in the ass to get to section 667 only to be deterred by the fact that there is still so much grey area. And amid all that grey lies the summary of it all – the strings attached to your freedom.

The more obvious strings being that if you have a more serious criminal passed associated with your marijuana conviction, you probably won’t be getting out any time soon, but the better news here is, you can probably reduce the cannabis charges which might reduce the sentence altogether. 

Expunged Records

Hidden in California’s Proposition 64 was a language that streamlined the reclassification process for prior cannabis arrests and convictions. It was a major victory for the movement, but the language left several questions unanswered for people seeking to clear their records.

Advocates were initially relieved to finally see some kind of solution for Californians with prior cannabis convictions, but it soon became clear that no one would benefit from the measure without a viable path to actually expunge cannabis records. It is important to note that the language of Prop 64 did not explicitly identify who had the authority to reclassify these convictions or who qualified.

Who Qualifies For Expungement?

In August 2018, then-Governor Jerry Brown signed Assembly Bill No. 1793 (Chapter 993) to establish and clarify the steps for expungement. This made expungement automatic for those who had previously been found guilty of marijuana possession. If you are 18 or older, in possession of more than 28.5 grams of cannabis or more, or 8 grams or more of concentrated cannabis, it constitutes a misdemeanor.

Essentially, if the amount of weed you had was less than the aforementioned amounts, it should theoretically lead to an automatic expungement if you were previously charged for possession. You’ll have to get a copy of your record from the district attorney’s office or courthouse where it’s held and then you will be able to file your petition.

The DA has a chance to look over the petition, but a judge will typically make the final call without a hearing, but that is not always guaranteed.

Criminal Offense

Under Section 11361.8 of Prop 64, a person may request resentencing or dismissal in accordance with Health and Safety Code Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as these have been amended or added by this act. You don’t really need a law degree to see that all these underlying sections and subsections create a more difficult path to an appeal.

If you are currently serving time for any of the above offenses and you would not have been convicted of that offense or found guilty of a lesser offense under Prop 64, you may petition the court to either be resentenced or have the case dismissed.

If your case meets the requirements for resentencing, then the court must grant your petition unless the court determines that granting it would pose an “unreasonable risk of danger to the public.”

Counting the strings attached to that “freedom” lies Pen. Co. Section 3000.8 and 3451 where it states that if released you are still subject to the same supervision you would have had if the sentence was completed. Just when you thought it couldn’t get better, unless otherwise discussed indiscretion by the court, you still have to be on parole. Luckily, once you are out, you can file for reduction or dismissal

So basically your life is in the hands of people who most likely have never even consumed marijuana or if they have, they just didn’t like it. Again, the application for appeal or reduced sentence only qualifies if the offense falls under the above Health and Safety Code sections.

Who Sits Behind Bars?

Let’s be real, we all know damn well who is innocently sitting behind bars. It’s crazy to think that there are people in power that are benefiting from these people’s misery, and they like it! So despite the changes in marijuana law, thousands of people continue to be incarcerated for marijuana offenses.

There are stark racial disparities in California’s marijuana-related jail population. Black, white, and Latino persons use and sell marijuana at similar rates. Yet, black Californians are jailed for marijuana-only offenses at much higher rates.

The 2016 California Incarcerations Report shows numbers that haven’t changed much in the last several years. “Severity of sentence was not consistent across counties.

For example, in the more affluent Orange County, the mean sentence for Marijuana Only offenses was 32 days in 2014. In urban Los Angeles County, the average sentence was almost 8.5 times longer at 269 days. This wide variance may reflect divergent ways in which marijuana-related laws are prioritized and enforced within local jurisdictions.”

Racism Behind The Term Marijuana

As you may have noticed there are several links in this article on the word marijuana, if you clicked then you’d see why they are there. If you didn’t click, let me summarize for you. The term “marijuana” is racist. 

It has a seriously deep-rooted dark history and it is all thanks to one dead, fat white guy named Harry J. Anslinger. If you cringed reading that name then you know exactly what I am talking about. You have to understand that he was regarded as an extreme racist in the 1920s. He used the N-word so often in official memos that his own senators said he should have to resign.

Anslinger, the first commissioner of the Federal Bureau of Narcotics from 1930 to 1962, through five presidencies, argued for total drug prohibition and severe punishment for offenders.

In the mid-19th century, Americans treated substance abuse, largely opiates, with compassion because it was an affliction wrought in part by the Civil War. A lot of soldiers became addicted and remained addicted after the war and there was a fair amount of sympathy for it.

Between the late 19th century through the 20th century, most opiate addicts were middle-aged, middle and upper-class women. However, the new drug laws were more about race than drugs. So as itinerant workers and urban African Americans became another visible group of drug users, the laws grew harsher.

The Harrison Act of 1914 made the first link between drugs and criminality. This Act turned habituated drug users and physicians into criminals overnight.

Image courtesy of Timeline

Enter Anslinger, the child of the temperance movement. He was convinced that only the depraved drank booze. Those with a strong moral constitution did not drink. He carried with him a bunch of ideas into the office and turned them into the foundation of prohibitionist drug policy and law.

Throughout the Great Depression, Anslinger’s op-eds and speeches portrayed narcotics as killing agents dispatched by alien aggressors. By this calculation, drug dealers were not just venal, they were evil.

Anslinger focused his lens on one drug, in particular, one grown naturally across the nation. It was known at the time by such names as hop, gage, Mez, juju, muggle, tea, and reefer. Anslinger claimed that it had been newly introduced to our shores by Mexican laborers. He got to define the problem.

Actually, “marijuana” wasn’t even called that at the time. Anslinger is responsible for that coinage, which has the effect of linking cannabis with Latinos.

Not only was he certain that marijuana corrupted youth and increased crime, but it also helped revive his dwindling agency. When alcohol was legalized in 1933, the funding of the Federal Bureau of Narcotics was slashed. Since alcohol was being rehabilitated, Anslinger needed a new threat to combat. He dramatized the marijuana threat in a widely-read article called “Assassin of Youth”.

Anslinger’s anti-marijuana propaganda yielded a major policy shift. In 1937, Congress effectively criminalized the drug with the Marijuana Tax Act. Still, his rhetoric drew criticism, so he doubled down by publicly denouncing conflicting medical research.

Mayor LaGuardia commissioned a report about marijuana in 1937 and discovered that marijuana did not make people criminally insane. It didn’t see print until 1944 because Anslinger didn’t want it to.

So basically, the only reason this “war on drugs” ever even occurred, is because of one very racist man. Ironically, later in his life, he developed angina and the doctor prescribed him really powerful opiates which he took happily. If the words racist and hypocrite had a face it would be Anslinger’s, alongside many other political figures.

How Can We Help?

With the way the world has been progressing, there are ways we can help our fellow cannabis consumers who are still incarcerated. Here at Herb, we work closely with the Last Prisoner Project because our goal, our mission is to free everyone locked for cannabis charges.

Unfortunately, there are still those in power who would rather see these innocent black and brown men and women remain behind bars and it’s pretty obvious why. 

The US prison system, now home to over 2 million Americans, runs like an economy unto itself: From the cafeteria line to the phone line to the assembly line, a steady stream of money is fueling the incarceration complex.

Advocates for criminal-justice reform are now harnessing big data to map out the carceral state, exposing the corporate networks that administer and finance the prison industry while driving its expansion. 

The prison economy rests on an opaque economic infrastructure with its own private-equity financiers, holding companies, and multinational executives. Prison infrastructures’ financial transactions are typically private and unregulated.

The number of people incarcerated in the U.S. increased over decades as more politicians with tough-on-crime stances were elected to office and laws changed surrounding sentencing. While mass incarceration was occurring, the private prison industry became a place to generate a lot of revenue.

So what can we do to help those still locked up? Today, millions of incarcerated people are forced to work for private corporations, state-owned corporations, and correctional agencies. Those who refuse to work are often beaten, denied visits and calls, and put in solitary confinement.

Tell Congress to end the exception in the Thirteenth Amendment that allows for slavery as punishment for crime by passing the Abolition Amendment.

There are literally so many petitions out there that are aiding in the lessening of a lot of people’s sentencing. Take Action by requesting and writing letters for cannabis reform. It is actually very easy to take two minutes to sign a petition, any petition regarding cannabis reform.


I’ll keep this part short. If you gathered anything from this article I hope it’s this: the term marijuana has some seriously racist roots, innocent men and women of color are still being denied basic human rights, and we can do a lot more to help out. Read books, educate yourself and others, sign and share petitions, raise awareness, and be the advocate the cannabis industry needs.

September 10, 2021
Written by Kiara Concepcion
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September 10, 2021
Written by Kiara Concepcion
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