Restorative Justice in Arizona: A Critical Look at Proposition 207

By Joanna Jandali.

Suffice to say, 2020 was a year of reckoning. From a global pandemic to a severe economic downturn to record-breaking natural disasters, this past year was defined by one destabilizing shock after another. Yet, what has remained consistent throughout this turbulent time has been the disproportionate impact felt by Black, Latinx, and Indigenous communities, from COVID-19 infection and mortality rates to unemployment rates. The events of 2020 underscored and compounded our system’s long-marked racial disparities.

However, with the accentuation of systemic inequities also came a chance for change. The 2020 election was an opportunity for voters to react in real time to the events of this past year. Arizona’s reaction included passing Proposition 207, which legalizes the use of recreational marijuana. Though at first blush Proposition 207 appears divorced of last year’s events, the legalization of marijuana reflects a pivotal moment for Arizona as it takes a step towards counteracting the devastation of the War on Drugs on communities of color. Thus, it is worth examining in closer detail what Proposition 207 accomplishes and how we might reconcile it with a vision for restorative justice.  

"LEGAL Colorado Marijuana Grow" by Brett Levin Photography is licensed under CC BY 2.0

Proposition 207’s Impact on Criminal Justice

Proposition 207, also known as the Smart and Safe Act, legalizes the sale, possession, and use of marijuana up to one ounce. It also decriminalizes marijuana possession up to 2.5 ounces; this means that while you may not be prosecuted for possessing between one to 2.5 ounces of marijuana, a civil penalty can still be imposed. The initiative creates a 16% excise tax on marijuana sales and establishes a “Social Equity Ownership Program” which issues licenses to dispensary owners that come from communities most severely impacted by marijuana criminalization. Moreover, the initiative permits individuals who previously have been convicted of marijuana offenses to have their records expunged. 

For a state with some of the harshest criminal justice practices in the country—including mandatory minimums and truth-in-sentencing—and one of the highest incarceration rates, Proposition 207 is an unprecedented step for Arizona towards reform. Prior to the initiative, Arizona was the only state in the country that considered first-time possession of any amount of marijuana a felony. A 2018 ACLU report found that in Arizona Black individuals were three times more likely than their white counterparts to be arrested for marijuana possession. Additionally, a 2020 report found that Hispanic individuals were sentenced to significantly longer jail and prison terms for simple possession than white individuals.

Thus, in a system where communities of color are overrepresented, Proposition 207 shows potential to relieve a swollen, racialized carceral state. First, legalizing marijuana possession means decreasing both current and future incarcerated populations. Second, by allowing individuals to expunge their records, the initiative reduces the collateral consequences of a criminal conviction, which can include inaccessibility to jobs, housing, and education. Third, the initiative makes headway in job development investment, adeterrent to crime, by allocating 33% of marijuana tax revenue to community colleges for the purpose of workforce development.

But will Proposition 207 Further Restorative Justice?

Despite all these strides, Proposition 207 may actually be incongruous with restorative justice measures. Evidence has long indicated that crime reduction is better targeted, not through “tough on crime” policies, but rather through substance abuse programs, poverty reduction, and community development. Proposition 207 incorporates such a framework by creating the Justice Reinvestment Fund, which is designed to bolster preventative, restorative, and rehabilitative practices within local communities. Funding will go toward jail diversion, workforce development, mentorship, and strengthening public and behavioral health services including substance-use prevention and treatment. The caveat is that the Justice Reinvestment Fund will receive only 10% of marijuana tax revenue while law enforcement will receive more than triple that amount.

This raises the question, is Proposition 207’s allocation of tax revenue antithetical to its goals? For the Justice Reinvestment Fund to actually implement restorative justice as an alternative to incarceration, there must be a synchronized effort to curb over-policing and our reliance on law enforcement to solve public health, economic, and social problems. Just take California for example. There, marijuana tax revenues were used to boost municipal police budgets by a few million and increase the number of officers in the force at the expense of funding equity driven initiatives to help Black and Brown communities. If Arizona is to see genuine transformation away from its carceral state and toward community rehabilitation and support, there must be a unified effort driving restorative justice practices. Continuing to prioritize investment in the prison industrial complex only serves to maintain it. 

While undeniably Proposition 207 does a lot of good for racial justice, it also presents a potential paradox: pitting funding for restorative justice investment against funding for law enforcement. Thus, in a year that has painfully sharpened racial inequities, we must remain vigilant that our efforts to ease injustice do not simultaneously thwart progress.

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By Joanna Jandali.

Joanna is a 1L and an O’Connor Honors Fellow, as well as an International Rule of Law and Security Fellow. She graduated from the University of Arizona Honors College with a bachelor’s degree in Political Science and Law, and a minor in Arabic. Joanna is interested in human rights law, transitional justice and criminal justice reform. In her free time, Joanna enjoys HIIT workouts, period dramas, and trying new coffee shops.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.