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Medical Marijuana: Expunge Bath

With expungement for low-level possession charges starting in July, some Arizona counties are dialing down enforcement

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Once the 2020 election is certified and pot officially becomes legal in Arizona for adult users, Pima County will join two other counties that have announced early dismissal of low-level possession and paraphernalia cases.

After the passage of Proposition 207, Smart and Safe Arizona, Maricopa and Yavapai counties announced their intentions to get ahead of expungement and Pima County was fast to follow suit.

There may not be many cases to dismiss though, as the Pima County Attorney's Office has treated possession of small amounts of pot and attendant paraphernalia as petty offenses rather than Class 6 felonies for the past quarter-century.

"We have very few felony marijuana possession cases," outgoing Pima County Attorney Barbara LaWall wrote in a recent email. "Because the initiative involves such a small amount of marijuana, the vast majority of Pima County personal marijuana possession cases involved will currently be in Misdemeanor Drug Diversion. Since I first was elected to office 24 years ago, we have prosecuted marijuana possession cases in amounts under 2 pounds as diversion eligible misdemeanors, not as felonies."

LaWall, who is leaving her post as the county's lead attorney on Dec. 31, has instituted some of the most progressive cannabis policies in the state under her leadership, allowing citizens caught with small amounts to enter the Drug Treatment Alternative to Prison (DTAP) program rather than being forced to do jail time.

Anyone in a diversion program for misdemeanor possession will also have their charges dismissed.

According to Chief Deputy Pima County Attorney Amelia Cramer, there are currently only a handful of cases where possession of small amounts has led to jail time. Those usually had extenuating circumstances such as DUI or intent to sell. But as far as county law enforcement is concerned, pot possession is and has been a misdemeanor rather than something deserving of hard time.

"County policy has been very progressive since [LaWall] took over," Cramer said. "DUIs are treated differently, but Pima County has the most progressive [cannabis policies] in the state, so we're not anticipating seeing a lot of them."

In the future, possession of more than 2.5 ounces—the upper limit allowed under the state's medical marijuana laws—would be eligible for diversion programs in lieu of jail time.

"We want to make sure the person is headed in the right direction," Cramer said. "If they get a citation, they can go to a diversion class, show us a certificate of completion and then the charges are dismissed. If they can't afford diversion we may be able to reduce or waive the fee."

According to the county website, the DTAP Program has helped participants become "productive members of society," as well as saving taxpayers tens of thousands of dollars for each individual diverted from the criminal justice system.

The website states that the average cost of placing a defendant through DTAP, including associated housing costs and support services, is $12,593, which is less than half the average cost of 14 months' imprisonment, weighing in at $30,162.

Diversion has also been shown to be preferable to imprisonment as a way to reduce recidivism by as much as 12.4%, compared to 6% of offenders returning to prison after serving time.

Statistically, 67.5% of all drug offenders are expected to be rearrested within three years of release, with 41.2% expected to be rearrested on another drug offense after serving traditional jail sentences.

The county reports that DTAP participants are nearly twice as successful in staying "drug and crime free," as those who enter the criminal justice system.

When the election results are certified, possession of up to 1 ounce of marijuana will be legal, with 1 to 2.5 ounces to be considered a petty offense.

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