Up in smoke: Why thousands of marijuana convictions were reduced and others were not



Elon Burns at his Spring Valley home. His three felony marijuana convictions, which had netted him four years in prison, were reduced to misdemeanors.
Nancee E. Lewis / The San Diego Union-Tribune

Since the passage of Prop. 64, about 1,600 marijuana cases have been re-evaluated in San Diego County, with almost 99 percent resolved in the petitioner’s favor. The process is simple, by judicial standards, and swift, by anyone’s reckoning.

By approving Prop. 64 in 2016, California voters did more than legalize marijuana use in the state. They also created a time machine.

Under the initiative, the state’s legal system is journeying into the past to erase or reduce old marijuana convictions.

“The oldest case we handled was from about 1970,” said Kate Braner, chief deputy in San Diego County’s public defender office. “Some of our clients are in in their late 60s or early 70s, so these convictions are not effecting their employment possibilities. But this has to do with their sense of self. They don’t want that scarlet letter hanging over them.”

That letter is imaginary, yet Elon Burns insists it has real consequences.

Burns has lived a law-abiding, job-holding, tax-paying life for the last 20 years. Yet his marijuana convictions from the 1990s, convictions that netted him years in prison, weighed him down.

“It made me feel insecure about being a citizen, that I was outside the mainstream and maybe didn’t deserve to be in the mainstream, whether it was getting a job or voting,” said Burns, 47, a Spring Valley resident. “It always inhibits you a little bit.”

In May, though, his inhibitions loosened a bit when his felony convictions were knocked down to misdemeanors.

Since the passage of Prop. 64, about 1,600 marijuana cases have been re-evaluated in San Diego County, with almost 99 percent resolved in the petitioner’s favor. The process is simple, by judicial standards, and swift, by anyone’s reckoning. Cases reach his desk daily, said assistant district attorney David Greenberg, and depart just as rapidly.

“At the end of the day, those trays are always empty,” Greenberg said. “We have no backlog.”

Political calculations

Last week, the Illinois legislature voted to legalize recreational marijuana. The measure, which if signed by the governor will take effect Jan. 1, 2020, includes a provision familiar to Californians: it would expunge the records of most adults with marijuana convictions.

That was a calculated move, said Allison Margolin, Los Angeles’ self-proclaimed “dopest attorney.” A similar measure in the New York state legislature failed in part because it lacked a mechanism to reduce or eliminate prior convictions.

“They didn’t address the criminal justice part of this,” Margolin said.

That left supporters in an untenable position, Margolin argued, trying to establish a new industry with the potential for great wealth and power, without helping the old laws’ poor and powerless victims.

“It’s all tied together,” she said. “You’d have rich white people making money off this, while the minorities and poor people who have suffered from the state’s policies haven’t been addressed.”

Times and priorities have changed. In 2012, Washington state and Colorado legalization campaigns didn’t try to overturn older pot convictions.

“It was a calculation at the time by the sponsors of the ballot initiatives that if they tried to do too much at once, they would not be successful at the ballot box,” said Justin Strekal, political director the National Organization for the Reform of Marijuana Laws (NORML). “Now it is emerging as a prominent and promising trend. Increasingly, states that have reformed their laws have been moving to seal and expunge records.”

By 2016, California authorities already had experience in revisiting crimes and punishments. In 2011, Prop. 47 reclassified some felonies — the list included shoplifting and writing bad checks — as misdemeanors. This “realignment” forced traditional legal opponents, prosecutors and defenders, to join forces.

“One of the things that is really good about our community is the D.A.’s office, the public defender and the court all work very well and cooperatively,” said assistant district attorney Greenberg, “making sure the criminal justice system works in an efficient and fair manner, in respect to changes in the law.”

In the beginning, Greenberg’s team assembled a spread sheet noting every person in custody on marijuana charges. That file was forwarded to Braner’s office, where it was reviewed for accuracy.

At the same time, the public defender’s office reviewed cases, seeking defendants who would qualify. Online, forms are posted for individuals who wish to apply for Prop. 64 relief. (They’re at https://www.sandiegocounty.gov/content/sdc/public_defender/fresh_start.html.) Or they email the office at [email protected] to start the process.

“It’s very simple,” Braner said. “Tell me who you and how to get in touch with you. We’ll figure out the rest.”

After both the D.A. and public defender sign off on an application, it is sent to a judge who orders the change. Felony convictions are turned into misdemeanor convictions, misdemeanors into citations, and some cases are completely expunged. The whole process takes from two weeks to two hours.

“There is almost no dispute about any of these cases,” Braner said.

“About 98.9 percent of these we’re agreed upon,” Greenberg said.

And yet…

While Prop. 64 has had a dramatic impact on thousands of Californians’ records, it was not a magic wand that caused every marijuana crime to go up in smoke.

“We’ve had many people driving marijuana across the border, for instance,” Greenberg said. “If you are convicted of that, you are not eligible for relief.”

Sold marijuana to children? Not eligible.

Registered sex offender with marijuana convictions? Not eligible.

Foreign citizen with legal troubles in California? Eligible. One of Braner’s recent clients was a tourist from Taiwan who left San Diego with an unwelcome souvenir: a marijuana conviction.

More people qualify than not, yet many are unaware of this aspect of Prop. 64. Keiara Auzenne, a local UCLA-trained lawyer, runs the free once-a-month San Diego Clean Slate Clinic. Of the 50 to 60 clients who show up for an average session, only a handful are familiar with the relief available under the 2016 initiative.

“Most of them hadn’t heard about this or didn’t think they were eligible,” Auzenne said. “The expungement process in general tends to be very confusing and can be overwhelming to people.”

And some are reluctant to re-engage with the justice system, especially after painful earlier encounters. At 21, Elon Burns pled guilty to possessing less than an ounce. His sentence was light — 30 days of public service and $1,180 in fines — but carried three years of probation.

That meant he was open to random searches of his property and person, such as the November 1995 sweep of his apartment that found over a pound of pot and 13 balloons of heroin.

“That was definitely for selling,” Burns said. “Cultivation and sale.”

Burns eventually spent four years in prison. On his release, he descended into drug addiction and depression.

“Back in those days, I felt like ‘Ex-con: Broken’ was written on my forehead,” he said. “It kind of becomes part of your sense of self. Even the good things you do, you figure don’t count.”

He persevered. Became clean and sober. Earned a psychology degree from San Diego State University. Became a substance abuse counselor.

Last month, he took one more step to erase his scarlet letter. He hired Jessica McElfresh, a lawyer who specializes in marijuana cases. By the end of the month, she had news: his criminal record, which had contained three marijuana felonies, now shows three misdemeanors.

For the time being. “She’s going to try to get it removed totally from my record,” he said.