Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Sunday, February 10, 2019

Interesting (and disappointing?) numbers from Washington after Gov promised to pardon thousands with prior marijuana convictions

As reported in this post last month, Washington Govornor Jay Inslee started 2019 by making much of his plans to pardon thousands of people convicted of marijuana possession charges.  But this new local article, headlined "Inslee pardons 13 marijuana convictions, as lawmakers consider expunging hundreds of thousands more," reports on just a trickle rather than a wave of pardon grants.  Here are the interesting details:

In the month since Gov. Jay Inslee offered pardons to thousands of people convicted of misdemeanor marijuana offenses, just 13 have received the official act of forgiveness. But a more sweeping proposal in the state Legislature may be gaining momentum, offering the potential clearing of criminal records for hundreds of thousands of others.

Inslee, a second-term Democrat who is publicly mulling a presidential run, announced his Marijuana Justice Initiative to fanfare in early January at a cannabis-industry conference, citing the disproportionate impact of drug-law convictions on people of color and lingering harm to employment and housing prospects.

His pardon offer was limited to people with otherwise clean records who had a misdemeanor marijuana conviction between 1998 and Dec. 5, 2012, the effective date of the voter-approved marijuana legalization Initiative 502.

About 3,500 people are estimated to be eligible for pardons under Inslee’s plan. As of Wednesday, 160 had applied, but the vast majority did not meet the eligibility conditions, said Tip Wonhoff, the governor’s deputy general counsel. After an initial rush of interest in the pardons, “it’s been a little slower than I thought,” he said.

For those who have qualified, however, the pardons have come as welcome relief. Taneesa Dunham, of Walla Walla, leapt at the chance to reverse her marijuana conviction from 2005....

Last month, Dunham’s mother saw a newspaper article about Inslee’s pardon offer and called to read the article to her. “I was jumping up and down with joy the entire time she was reading it. I immediately went to the website and filled [the application] out,” she said. A pardon signed by Inslee soon arrived in the mail. Although Dunham’s conviction remains in court records, the pardon is listed, too.

Dunham said her criminal record, while minor, had made it difficult for her to get a job as she’d had to report it on employment applications, and she worried her daughter’s school would exclude her from field trips. A recreational marijuana user in her 20s, she says she now uses cannabis medicinally for help with a back injury that has left her on disability. “I am just really glad it is legal now so nobody has to go through what I had to go through, and the courts and the cops can go after the real drug dealers and leave the potheads alone,” she said.

Chris Tilzer, of Covington, also was pardoned by Inslee for a pot-possession conviction in 2006 after Bellevue police cited him for smoking in a park. He served one day in jail, according to court records. “I was working and it could have caused me problems if they would have found out about it,” he said, adding that the blemish on his record has since complicated some international travel plans.

Tilzer now works in the cannabis industry and said he appreciates Inslee’s effort, but the state should do much more. “The amount of people who meet the qualifications is not going to really help anybody — not that many people,” he said.

Such relief could be on the way. Sponsors of legislation that would allow hundreds of thousands of people with minor marijuana convictions to expunge their records say the proposal could have a better chance this year than in the past. Rep. Joe Fitzgibbon, D-Burien, has introduced a similar bill every year since 2013 without success, but says this year’s version, House Bill 1500, could break through. “It just seems like there is a lot more momentum this year than any of the past times I have taken a run at it,” he said, noting support from Inslee, the state’s cannabis industry and organized labor.

HB 1500 would allow anyone with prior convictions for adult misdemeanor marijuana possession to apply to courts for a vacation of those convictions. The courts would be required to grant the requests.

The Washington State Patrol has estimated 226,027 misdemeanor marijuana convictions would qualify for vacation under the proposal. Fitzgibbon noted the number of people eligible might be less than that as some have multiple convictions.

The proposal has drawn criticism from the Washington Association of Sheriffs and Police Chiefs, whose policy director, James McMahan, testified against it during a public hearing Tuesday before the House Public Safety Committee. “It is a relevant and influential point with us that at the time these convictions were imposed it was illegal. It was against our law. And we as a government and as a society said this is not OK,” McMahan said, noting that some of the misdemeanor convictions had been pleaded down from felonies.

But Sen. Joe Nguyen, D-White Center, the prime sponsor of an identical companion measure, Senate Bill 5605, said the Legislature needs to repair damage done by decades of marijuana arrests that disproportionately affected minority communities. Before legalization, black people were 2.8 times more likely to be arrested for marijuana possession than whites, despite being no more likely to use marijuana, according to a report by the American Civil Liberties Union.

It is disappointing, but not at all surprising, that the Washington Association of Sheriffs and Police Chiefs cannot get behind trying to forgive and forget hundreds of thousands of low-level past marijuana offense. But I am not sure if I am disappointed to learn that so few past offenses are being addressed by Gov Inslee's pardon plan as perhaps the relative inefficacy of that program is playing a role in the legislative push for a much broader expungement statute.

Some of many prior related posts:

https://lawprofessors.typepad.com/marijuana_law/2019/02/interesting-and-disappointing-numbers-from-washington-after-gov-promised-to-pardon-thousands-with-pr.html

Criminal justice developments and reforms, Who decides | Permalink

Comments

I certainly share your frustrations with Gov. Inslee's inefficient pardon plan. While obtaining a pardon seems like a relatively straightforward process to many, access to justice is certainly an issue that needs to be discussed here.

Many of these expungement/pardon programs across the country have seen relatively low numbers of applications when compared to the number of convictions eligible for expungement, whether this is due to inconvenience, accessibility issues, or cost. Obviously, individuals must know about the program in the first place in order to apply for it. Next, given that Washington's pardon system starts with a web form, individuals aiming to receive a pardon must have access to a smartphone, tablet, or computer. Third, this initiative only applies if the marijuana conviction is the sole conviction on your record. I definitely understand where this is coming from, but looking at the purpose behind the initiative, it seems harsh to have someone with just two or even three minor possession charges, perhaps in their youth as far back as 1998, be the reason they are unable take advantage of this initiative and move on with their lives. If we are truly worried about the collateral consequences associated with a failed draconian war on drugs policy as it relates to marijuana and want to improve people's lives, this just seems like an unjust result.

Additionally, while the Governor's idea is progressive and the right thing to do given the disproportionate effect the war on drugs has had on African Americans, why are we placing the ultimate burden to deal with these convictions on those who were wronged, rather the government that imposed these failed policies? Instead of having to apply for a pardon, why do states like Washington not take it upon themselves to automatically pardon eligible marijuana convictions under these initiatives? Certainly, there is a large administrative burden associated with this, but in my mind this is a burden worth taking on to redress the years and years of harm caused by these failed war on drug policies.

Posted by: Dave Haba | Feb 10, 2019 7:55:38 PM

I believe that automatic expungement has to be the way to resolve the inequities produced by marijuana possession charges in states that have legalized marijuana. These convictions have consequences have lasting employment and housing consequences haunting people long beyond the original punishment for the crime. I think expungement is more appropriate than pardon, especially considering that people like Taneesa Dunham, who is named in the article, must still have the conviction listed on a criminal record alongside a pardon.

I think it is unacceptable that there is a requirement for a completely clean criminal record to be eligible for pardon; if marijuana has been declared not to be the problem, it shouldn’t be a problem for anyone at all, not only those who are lucky enough not to have been caught in the net of criminal justice only once. There are far more than the 226,027 eligible in Washington who deserve pardon and expungement.

Posted by: Anna Grushetsky | Feb 14, 2019 7:53:13 AM

I echo nearly all of Dave's thoughts on this subjects. How can it be considered just to put the burden on the individuals who were wronged to have their records cleared?

I don't necessarily agree with Dave's argument that the burden should be shifted completely to the state in these situations, however. I believe this might be too large of a task. Instead, individuals with these types of convictions should be required to simply fill out some type of application in which they explain what they were charged and convicted of and mail it to the courts. At this point, the court can simply expunge their records. This puts some onus on the individual yet the state still maintains the majority of the burden. The individuals would not be required to go to court, hire a lawyer, or do anything that is onerous. Seems like an easy solution that both sides could be happy with.

Posted by: Jared Kriwinsky | Feb 14, 2019 12:03:17 PM

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