Proposition 207: A Beneficial Change for Prior Convicts and Arizona as a Whole

By Madison Leake.

Arizona, once the state with some of the harshest marijuana laws in the country, has now legalized marijuana for recreational use. While the proposition passed after the November 2020 election, it was not until recently (the end of January) that the Department of Health Services approved licenses for facilities to begin selling recreational marijuana in the state. This dramatic shift in Arizona law is bound to impact the state’s entire criminal justice system, including prior convictions. Now that Arizonians can go buy marijuana almost as easily as liquor, what does this mean for those with prior marijuana convictions?

What is Proposition 207?

Proposition 207 dramatically changed marijuana policies in Arizona. Now, possession of up to an ounce and use of marijuana is legal for adults over twenty-one. Further, residents can now grow up to six marijuana plants in their home without any special license or approval. While this is a welcome change, the road to decriminalization has been long. Medical marijuana has been legal since 2010, but a similar recreational proposal was struck down by voters four years ago. Decriminalization has been continuously supported by advocates for criminal justice reform who pointed to the unusual harshness of Arizona’s marijuana laws. Prior to Proposition 207 passing, Arizona was the only state that allowed a felony charge for first time possession of even a small amount of marijuana. Arizona prosecutors did drop thousands of active possession cases after Proposition 207 was approved. But where does this leave the hundreds of thousands of people with prior marijuana convictions? These prior convictions may prevent people from voting, applying for jobs, and even renting a house or apartment despite the fact that if they committed the same act today, they would not be breaking the law.

What Does Proposition 207 Mean for Arizonans with Prior Marijuana Convictions?

Even for Arizonans with convictions that would not be a crime today, past marijuana convictions will not automatically be erased. Rather, one must complete a petition and file it with the court. Proposition 207 states that starting on July 23, 2021, people arrested, charged with, adjudicated, or convicted, or sentenced for possessing two and a half ounces or less of marijuana are able to petition to have their record expunged, as well as those who had  12.5 grams of concentrate or less and those who had six marijuana plants. If the agency that originally prosecuted the individual for the crimes is unable to prove, by clear and convincing evidence, that the crime does not qualify for expungement, then the crime is expunged. Essentially, the prosecution would have to prove that an individual’s conviction is not covered by the proposition, i.e., they possessed too large of an amount of marijuana or grew too many plants. Therefore, if the person’s past conduct would not be considered illegal under Proposition 207, then that person is eligible for expungement.  

What Does Expungement Mean?

Before the passing of Proposition 207, there was a pathway to be released from some penalties of a part marijuana conviction. Arizona allowed individuals who had completed their probation or sentencing to petition to have their conviction set aside. While having a conviction set aside releases the individual from penalties—like not being able to vote—the conviction is still not under seal. Importantly, this means individuals would still have to report this conviction on job applications and other government applications. Also, a conviction that has been set aside can still be used against a defendant in a future case. Proposition 207 goes further, and actually creates a pathway to have a defendant’s conviction expunged. If a petition is successful, the record would be sealed—it cannot be used against a defendant in a future case, and there is no need to report it on a job or other application. Having a conviction expunged, not merely set aside, is one of the most progressive aspects of Proposition 207 and will open up doors for those previously convicted.

Why Is Proposition 207 Good for Arizona?

While some Arizonans may have a distaste for legal recreational marijuana, Proposition 207 has undeniable benefits. First, as discussed, the opportunity to expunge past convictions will open up doors for many people with prior convictions. Next, Proposition 207 will prevent new marijuana offenses from being prosecuted, and will therefore lighten the load on Arizona’s overburdened prison system. As stated, Arizona previously had some of the harshest marijuana laws in the country. Arizona also has the fifth highest imprisonment rate in the country, leading Arizona taxpayers to spend over one billion dollars on the prison system each year. Proposition 207 will save tax money and prevent individuals with minor nonviolent marijuana offenses from being imprisoned. Finally, Proposition 207 puts a sixteen-percent tax on marijuana sales. The revenue from this tax will be used for community college districts, municipal police and county sheriff departments, fire departments and fire districts, the state’s Highway User Revenue Fund, and a new justice reinvestment fund. Despite individual feelings on the legalization of recreational marijuana, Proposition 207 is objectively good for Arizona. It will give minor offenders a clean slate, lighten the load on our prison system, and give additional tax revenue to the state.

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

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By Madison Leake.

J.D. Candidate 2022

Madison Leake is a 2L and staff writer for the Arizona State Law Journal. Before law school, she earned a degree in Criminology and Criminal Justice from Arizona State University. When she’s not at school Madison enjoys cooking, watching any movie on Netflix, and spin classes.

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.