How the Retroactive Penalty Provisions of Proposition 64 Apply to Marijuana Convictions

Most Californians are aware that recreational marijuana use was legalized in November 2016. What is less well known is that Proposition 64 (the Control, Regulate and Tax Adult Use of Marijuana Act, or “the Act”) also carried sentencing provisions, which eliminated penalties for minor marijuana offenses, and reduced penalties for more serious offenses such as selling or cultivating marijuana. More importantly, these provisions are retroactive. This has allowed many incarcerated Californians to file petitions under the Act and seek immediate release. Hundreds of inmates have achieved such release since the law took effect.  

The Effects of Proposition 64

The Huffington Post reports that close to one million people in California qualify for relief under Proposition 64. This can include: reducing a felony conviction to a misdemeanor; terminating a sentence of probation or incarceration, expunging criminal records, or dismissing a pending case. The terms of Proposition 64 created a new law (California Health and Safety Code §11361.8) by which to facilitate the process of applying for relief.

Retroactive application of a sentencing law is unusual in and of itself, but §11361.8 is even more striking, in that it does not place a time limit on which the conviction must have occurred. Any person currently serving a sentence may apply for relief if he or she would not have been guilty – or been guilty of a lesser offense – had the Act been in affect at the time of the offense. Moreover, California courts are instructed to broadly grant petitions for relief. In order to deny such a petition, the court must determine that an unreasonable risk of danger to public safety would be posed by granting it. This creates a de facto legal presumption that qualified applicants are entitled to have their petitions for relief under the Act granted. This presumption can be challenged (and overcome) by a prosecutor, but it is still an advantage for defendants seeking relief from their sentences for marijuana offenses.

A Civil Rights Issue

Convictions for drug offenses in the United States have historically demonstrated a high racial disparity. The Orange County Reporter identifies a study which found that Latinos were twenty-six percent more likely, and blacks were five times more likely, than whites to be arrested for a marijuana felony in 2015. This is in spite of evidence that blacks, whites and Latinos all consume and sell marijuana at similar rates. Celebrities such as rapper Jay-Z and actor Danny Glover cited this as the reason they supported the Act. It was also the reason that Silicon Valley billionaire Sean Parker donated more than seven million dollars to support the passage of Proposition 64.

The state’s recreational marijuana referendum has wide-reaching applications which can help those with previous convictions for marijuana offenses. Sentences can be reduced or overturned, inmates can be released, and criminal records changed as a result of the retroactive sentencing provisions of Proposition 64.

The Los Angeles Cannabis Law Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

California Today: Still Serving Time for Marijuana, May 17, 2017, by Mike McPhate, The New York Times

More Blog Entries:

Report: California Arrested 500k People in 10 Years for Marijuana, September 5, 2016, by Cannabis Law Group