Prop 64: Resentencing Marijuana Convictions

The Control, Tax, and Regulate Adult Use of Marijuana Act, now known as Proposition 64 (Prop 64), will be on California's November 2016 ballot for voter approval.  Prop 64 is polling well, and all signs point to voters approving Prop 64 in November.  

While Prop 64 is getting a lot of attention due to the general controversy surrounding recreational marijuana legalization and its regulatory scheme permitting commercial cultivation and distribution, it should be known that it will also provide relief to individuals with prior marijuana convictions through resentencing.  

 

Individuals with prior marijuana convictions will be able to petition a court for a reduction of their sentence or prior marijuana conviction if it carries less of a penalty (or is legal) under Prop 64.  For example, the penalty for cultivating more than six cannabis plants will be a misdemeanor under Prop 64, but is currently a straight felony. As such, individuals with a prior felony marijuana cultivation conviction will be able to petition a court for resentencing and have their conviction reduced to a misdemeanor.  

Prop 64 will add section 11361.8 to the Health & Safety Code.  Section 11361.8 allows:  (1) individuals that are currently serving a sentence for a marijuana related offense; or (2) individuals who have already served their sentence for a marijuana related offense, to petition a court for a reduction or dismissal of their sentence/conviction if it would not be a crime or would be a lesser offense under Prop 64.  

The offenses specified below will be reclassified or made legal under Prop 64:

  1. Possession of < 1 ounce of marijuana:
    1. Currently:  $100 ticket
    2. Prop 64:  Legal
  2. Possession of < 8 grams of concentrate (hash, oil, rosin):
    1. Currently:  Misdemeanor
    2. Prop 64:  Legal
  3. Cultivation of Marijuana < 6 plants:
    1. Currently:  Felony
    2. Prop 64:  Legal (Ages 18-20:  $100 ticket)
  4. Cultivation of Marijuana > 6 plants:
    1. Currently:  Felony
    2. Prop 64:  Misdemeanor
  5. Possession of Marijuana for Sale:  
    1. Currently:  Felony
    2. Prop 64:  Misdemeanor (1st and 2nd Offenses)
  6. Transportation of Marijuana for Sale:
    1. Currently:  Felony
    2. Prop 64:  Misdemeanor

Accordingly, any individual serving a sentence for an offense that carries a lesser penalty or is not a crime under Prop 64, may petition a court for resentencing under section 11361.8.  The petition for resentencing must be granted unless the petitioner presents an "unreasonable risk to public safety."  (Same standard as Prop 47. )  Moreover, individuals with prior marijuana convictions that constitute a lesser offense or are legal under Prop 64 may petition a court for resentencing under section 11361.8 and to have their records sealed (removed from their Records of Arrests and Prosecutions).  

For example, let's say Mike has a prior felony possession of marijuana for sale conviction from 1999.  Currently, Mike's only remedy (if he was not sentenced to state prison) is to petition the court for a dismissal under Penal Code section 1203.4 (commonly referred to as an "expungement".) However, this remedy is limited, as the felony cannot be reduced to a misdemeanor before expungement.  Even if the conviction is expunged, Mike will still be barred from owning a gun, from serving on a jury, and can be legally discriminated against in employment, housing, college applications, and be denied public benefits like CalFresh.  Under Prop 64, Mike will be able to have the offense reduced to a misdemeanor and the records sealed and destroyed.  Mike will be given a chance to reintegrate into mainstream society.

The resentencing portions of Prop 64 are important.  It will give non-violent marijuana offenders a chance to reintegrate into society and reduce our jail and prison populations by letting out non-violent drug offenders.  In turn, our jails and prisons will have the capacity to accommodate serious or violent offenders and make our communities safer.  Vote yes on 64.  

Posted by Mike Donaldson.