Up in Smoke: The Smart and Safe Arizona Act and the Effect of Expungement Provisions

By Kaylee Racs.

In November 2020, citizens of Arizona voted to pass Proposition 207, otherwise known as the Smart and Safe Arizona Act (SSAA). In addition to legalizing recreational marijuana use for adults 21 and older, the SSAA contained a provision (now codified as A.R.S. 36-2862) allowing certain individuals to petition the court for an expungement order sealing past marijuana-related convictions.

Who Is Eligible to Have Their Past Convictions Expunged?

Beginning July 12, 2021, those who were arrested for, charged with, or convicted of any of the following three offenses are eligible to apply for expungement:

  • Possessing, consuming, or transporting two and one-half ounces or less of marijuana, of which not more than twelve and one-half grams was in the form of marijuana concentrate.
  • Possessing, transporting, cultivating, or processing not more than six marijuana plants at your primary residence for personal use.
  • Possessing, using, or transporting paraphernalia related to the cultivation, manufacture, processing, or consumption or marijuana.

Further, the expungement provision applies to both adult and juvenile offenses.

What Is the Effect of This Provision in Practice?

The SSAA is novel in its expungement practice because, prior to its passage, Arizona citizens could only apply for their previous convictions to be “set aside.” A set aside conviction remains part of one’s criminal record, whereas an expunged conviction is effectively sealed. This means that landlords, employers, and other members of the general public will no longer have access to records of those convictions. This has the potential to drastically improve the quality of life of many individuals in terms of their job and housing prospects, among other things. Additionally, it removes the ability of prosecuting agencies to use the expunged conviction as evidence of prior offenses and restores the individual’s civil liberties, including the right to vote, the right to hold public office, and the right to serve as a juror. The Maricopa County Superior Court alone has granted over 3,600 petitions for expungement since the filing period opened just over two months ago.

The SSAA Is the Start, Not the Solution

The policy objectives behind the SSAA’s expungement provision are admirable, but it is not a sufficient solution to the larger problem it attempts to address. Because the expungement process is not automatic, the majority of eligible individuals may never receive the benefits of the law. Only those individuals with the time and access to navigate an overwhelming legal landscape that will be successful. Those hoping to expunge their records not only need to follow complicated legislative instructions, but they must also comply with the requirements of the newly-adopted Arizona Rule of Criminal Procedure 36.

Many individuals also face issues stemming from the ambiguity of their qualifications for expungement. Marijuana-related charges could be five or ten years old, and many arrest reports do not contain a specific reference to the weight of the cannabis at issue. Absent easily accessible resources to assist in determining eligibility and navigating the court system, the SSAA falls short of fully accomplishing its intended goal.

Recommendations for Moving Forward

Other states have adopted automatic expungement provisions for similar marijuana-related offenses. In New Jersey, over 360,000 eligible individuals automatically had their previous convictions sealed with the passage of the Marijuana Decriminalization Law. In Nevada, over 15,000 individuals convicted of minor marijuana offenses were pardoned by the governor, and in California, over 140,000 convictions have been reduced or dismissed.

By passing its first ever expungement law, Arizona has taken a significant and necessary step towards criminal justice reform and aligned itself with the majority of states in terms of legalization of the cannabis industry. The next step is to remove the bureaucratic barrier to expungement and amend the provision to include an automatic process for record clearing. A particularly great model is Illinois, which expunged over half a million records relating to low-level marijuana charges just a year after the state voted to legalize marijuana. The Cannabis Regulation and Tax Act contains restorative justice components and authorizes the use of state police and other court officers to assist in the facilitation of the expungement process.

More community advocacy is necessary to ensure that every individual eligible for expungement is aware of the resources available to them. The SSAA allocated a $4 million fund for distribution to non-profits assisting with the filing of petitions, but the grant is non-renewable and largely used to compensate clinic providers rather than to promote outreach and awareness.

Conclusion

The SSAA’s expungement provision should be applauded for its acknowledgement of marijuana offenses as historically discriminatory and typically non-violent. Nevertheless, it must be recognized that it is only the first step in a long series of actions needed to address past wrongs resulting from marijuana-related convictions. Especially as its legalized cannabis industry takes off, Arizona should follow the example set by other states and grant the automatic expungement of low-level marijuana offenses.

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

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By Kaylee Racs

J.D. Candidate 2023

Kaylee is an ASLJ Staff Writer and 2L at ASU’s Sandra Day O’Connor College of Law. She is from Los Angeles, California, and earned her BA from the University of California, Berkeley. She is actively involved in Moot Court and Mock Trial, and is pursuing a career in civil litigation. Outside of law school, she enjoys experimenting with new recipes, thrift shopping, and exploring everything Arizona has to offer.

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.