How the Prosecutor's Race Will Affect Legalized Marijuana in Maricopa County

Democrat Julie Gunnigle (left) is challenging Maricopa County Attorney Allister Adel for her seat.
Allister Adel's reelection campaign & Ash Ponders
Democrat Julie Gunnigle (left) is challenging Maricopa County Attorney Allister Adel for her seat.
If Arizona voters decide to legalize marijuana in two weeks, their choice of county attorney would play a role in how the new marijuana law would work.

Proposition 207 — the Smart and Safe Act — contains provisions that would allow adults 21 and older to legally possess up to an ounce of marijuana and five grams of cannabis concentrates, grow six pot plants, and buy pot safely in a retail store. Importantly for those who have fallen victim to the state's felony pot-prohibition statutes, Prop 207 would also allow people to file motions to dismiss certain pending possession cases, and file petitions to expunge the records of past convictions.

Meantime, in Maricopa County, voters will be asked to choose between county attorney candidates Allister Adel, a Republican trying to keep her post after being appointed in October, and Julie Gunnigle, a Democrat and former prosecutor who's fashioned herself as a progressive prosecutor.

Gunnigle has made marijuana law reform a key point in her campaign, saying she'll refuse to prosecute low-level marijuana cases regardless of the outcome of this year's legalization initiative. (She's also pledged not to prosecute anyone over abortion if that should ever become illegal in the state.) She encourages Arizonans to vote for Prop 207. And if they do approve the measure, as recent polls show they might, and county voters also approve Gunnigle, she says she'll do everything she can to make the measure's expungement mandate work.

To do so, Gunnigle wants to create a system that allows for the "universal and automatic" expungement of qualifying cases, as The Appeal first reported on Wednesday. In The Appeal and in a subsequent interview with Phoenix New Times, Gunnigle pointed out that Adel has claimed that Prop 207 is "not retroactive," despite its expungement clauses. Yet the proposition makes clear that people could qualify for expungement of past cases and move for the dismissal of pending cases that arose just before the law's theoretical passage.

"It's alarming to me that someone would misstate the law like that," Gunnigle said. "That concerns me as someone who wants intelligent policy."

Adel, who can't afford to alienate the county's older Republican voters who generally don't like Prop 207, must take a more cautious approach. Yet with a liberal campaign opponent, the possibility of statewide legalization, and a public that has grown more tolerant of marijuana in recent years, Adel has softened her office's application of the state's felony pot laws.

She announced in August that people caught with small amounts of marijuana wouldn't be prosecuted if they obtained a medical marijuana card. She also said during a recent debate that her office has "declined charges on a significant number of possession cases." Critics have viewed this and other moves by Adel cynically, accusing her of making small steps for political reasons only.

It's unclear what Adel meant when she said the law was not "retroactive," as she did in an October 16 debate. But in a statement to New Times, Adel ditched that rhetoric and indicated that if Prop 207 passes, her office will drop pending cases in the spirit of the new law.

"This office will use prosecutorial discretion to determine if pending charges that meet the requirements of this proposition will be dropped," she said. "If the voters of this state determine that they believe marijuana should be legal, this office will honor the will of the voters for pending cases."

Adel said the law draws the line at 2.5 ounces for expungements.

"Under my administration, the motions for expungement will be a priority to ensure responses within the 30 days as outlined in the proposition," she said. "Like all legal decisions made by this office, we will look at each case individually to determine the appropriateness of the request. However, the will of the voters, along with any public safety concerns, will be our primary focus."

Stacy Pearson, spokesperson for the Smart and Safe campaign, told The Appeal that the person in the county attorney's office is "critically important." But she made the situation seem less dire in a subsequent interview with New Times. She pointed out that the proposed law's mandate for an expungement process puts the burden on prosecutors' offices to prove — within 30 days — if the person is ineligible for expungement.

"We wanted this to work no matter who gets elected," Pearson said.

How It Would Work

Nathan Knight was a 19-year-old Arizona State University student when he and a friend were arrested in 2014 for marijuana possession in his Manzanita Hall dorm. A resident assistant on their floor had smelled pot and called Tempe police, who found less than a gram of marijuana and a pipe, Knight said.

"They took us away and took us to the holding facilities," he said. "[We] stayed in a cell overnight. The next day we were released around 6 a.m. with no shoelaces and I had to walk to go take a test.”

Knight, who said he ended up paying about $3,000 or $4,000 for the experience, was charged initially with three felonies. Besides marijuana and paraphernalia possession, he was also charged with "tampering with physical evidence" because he had tried to hide the marijuana from the police.

The felonies were later dropped to two misdemeanors.

"That misdemeanor on the record is something I now have to, you know, have on the resume, and whenever I speak to potential employers," said Knight, who is self-employed.

If Prop 207 passes, people like Knight will be able to expunge, or erase, all record of certain marijuana crimes from public view.

But it may not be as easy or flexible as some would like. The initiative only allows for the expungement or dismissal of ongoing or past cases that roughly match what the new law permits, ie., cases involving up to 2.5 ounces of marijuana flower, 12.5 grams of concentrates like vape-cartridge oil, and paraphernalia that was related to possession or cultivation of marijuana. (Under Prop 207, a person caught with between one ounce and 2.5 ounces could be charged only with a petty offense, punishable by a maximum fine of $300.)

For a recent arrest, charge, or indictment that occurred before the law passed, a person could file a court motion to have the case immediately dismissed with prejudice. The motion could be filed anytime after the Prop 207 vote, if successful, is certified.

Starting on July 21, 2021, people could petition the court to expunge an old case. The court would notify the prosecuting agency that the petition has been received, and prosecutors have 30 days to respond and request a hearing if they dispute the petition's facts. The court must grant the petition unless prosecutors prove "by clear and convincing evidence that the petitioner is not eligible for expungement."

Prosecutors would be forced to review the petitions to make sure the requester didn't actually have 10 ounces of marijuana or 60 plants. They'll request hearings for some petitions to try to prove their case that a person isn't eligible for expungement. Crucially, a prohibitionist prosecutor like Sheila Polk, who's running for a sixth term of office in Yavapai County, could demand hearings for every case involving slightly more than an ounce, or seven plants instead of six.

There are other complications: The law's limits don't allow for expungement of any other crimes. Knight's misdemeanor conviction for tampering with evidence, for instance, would apparently be un-expungable even though it was directly related to his pot bust.

Petitions En Masse?

It's unknown at this point how many people in Arizona might have cases that could be dismissed or expunged based on Prop 207, but Pearson puts the number as high as 200,000.

The expunged records would be held separately by authorities, to be viewed only with the person's approval.

The state Supreme Court could make rules "necessary to implement" the expungement process, and money from the state's medical marijuana fund could be used to facilitate it.

“We will probably see new rules,” said defense attorney Tom Dean, who supports Prop 207. “It might be a little difficult, if you don't have an attorney, to be able to get the appropriate petition filed." He added, "After 207 passes, I'm gonna be doing these workshops for free to educate anyone who wants to know. I'll be putting videos up getting into more detail about exactly how to do this."

Jerry Landau, the government affairs director of the Arizona Supreme Court, said he was unsure how many people expungement would affect, noting that the lowest-level possession penalty under current law is two pounds, and 2.5 ounces is an unknown subset of that number.

Landau went on to say that the Supreme Court remains focused on "enforcement," since it has eight months to figure out how the expungement process will work if Prop 207 passes.

Intriguingly, Prop 207's expungement section states that prosecution agencies and the state Attorney General's Office could petition the court on behalf of any individual. That could open the possibility for mass expungements and dismissals, Gunnigle said.

Two years after California voted to legalize ganja in 2016 through Proposition 64, then-Governor Jerry Brown signed AB-1793 to simplify the steps to expungement. The Department of Justice became responsible for reviewing and dismissing eligible convictions. It asked California district attorneys to identify those who could have their records expunged. According to Los Angeles District Attorney Jackie Lacey in a February press conference, the court was asked to dismiss "nearly 66,000 cannabis convictions in Los Angeles County."

Gunnigle said it would "make a lot of sense" if Governor Doug Ducey proactively moved toward mass dismissals and expungements of marijuana cases.

"I don't know where our governor stands on it. If we don't have support there, it's my intention to use the provisions of the expungement section," she said, theorizing an election that approved both her and Prop 207. "It's really essential that we get this right."

Support from Ducey in that regard would be unexpected, considering his staunch opposition to the legalization of marijuana.

According to Pearson, people of color in particular would have a lot to gain from expungement.

“I think the voters understand that there were overzealous criminal prosecutions that impacted communities of color more than others,” she said. “If the voters are willing to legalize, they’re also willing to let people get back on a level playing field.”

Statistics obtained by New Times show that Phoenix police have arrested an average of 9.3 adults (18 or older) per day, or 3,400 people per year, on a charge of basic marijuana possession, going back to 2017. About 90 percent of those arrested were booked into jail. The figures are only slightly lower than in 2011-2012, when police arrested 9.8 people a day.