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Clearing the Record

Legalizing cannabis is great and all, but have you ever tried redressing social injustice?

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For most people, the most exciting part of legalizing cannabis is the ability to freely consume a substance less harmful than cigarettes or alcohol. For others, it may be the ability to go to school, get a job or buy a house.

People with cannabis-related arrests on their record face several societal penalties as a result of convictions related to a plant that voters may soon legalize. Expunging those people's records presents one of the biggest hurdles to undoing the damage caused by cannabis prohibition.

Some states, like Oregon, Colorado and California, included provisions in their legalization efforts to allow people to clear their records of cannabis convictions.

A bill introduced in Arizona state legislature and the Safe and Smart Arizona Act also included expungement provisions.

"Folks who were convicted because of what is now going to be legal should not get left behind," said Stacy Pearson, spokesperson for the Safe and Smart campaign.

However, expungement isn't a simple as combing through government databases and tapping "delete" every so often. Arrest records for cannabis crimes reside within several levels of legal hierarchy.

Aside from the fact that federal records won't be included in expungement (because cannabis is still federally illegal), records traverse municipal-, county- and state-level courts as well as respective law enforcement agencies.

Given these difficulties, states rarely automatically expunge records. Provisions in the Safe and Smart initiative require individuals to petition the court to expunge records.

While the courts must comply unless a prosecuting agency challenges the expungement, the question remains how many people will actually try to expunge their records. Even if individuals know they have the opportunity, some may find it an intimidating prospect.

California attorneys found far fewer people came forward to expunge their records than they'd expected. In response, California state legislature passed a bill to automatically expunge records in 2018.

The Safe and Smart Arizona Act would create a Medical Marijuana Fund of which $4 million would go to nonprofits such as the ACLU and the Southern Poverty Law Center to help reach out and assist individuals with cannabis-related arrest records.

Oregon, Illinois and Washington have also passed laws to automatically expunge records following legalization.

A budding non-profit organization, Code for America, has helped expedite such efforts by developing an algorithm to automatically search through states' databases for convictions to expunge.

More than 7 million people between 2001 and 2010 were arrested for cannabis possession, according to the American Civil Liberties Union. Black people were 3.73 times more likely to get arrested than white people, despite similar rates of use.

In Illinois, attorneys are looking at expunging more than 800,000 records statewide. Though the Safe and Smart campaign didn't have the exact number of cannabis crime records in Arizona, a similar proportion to Illinois would put the figure somewhere around 450,000.

The provisions included within the initiative may end up serving as a template for any future expungement laws passed in Arizona as well. Currently, Arizona has no framework for expunging records at a statewide scale.

Last year, State Rep. Ben Toma (R) introduced legislation to allow people with nonviolent convictions to expunge their records after five to seven years as part of the state's continuing criminal justice reform efforts, said Mikel Weisser, director of Arizona NORML.

The bill ultimately failed, but voters could consider the Safe and Smart Arizona Act a spiritual successor, Weisser said.

Though the initiative falls short of automatic expungement, some is better than none. And national efforts may make their way to Arizona with the potential of automatic expungement in the future.

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