Could a Pima County Ruling Threaten Marijuana Expungements in Arizona?

Lilach Mazor Power

Since July 12, hundreds of thousands of people convicted of low-level marijuana charges in Arizona are eligible to have their records scrubbed clean, thanks to a provision of Proposition 207, the marijuana legalization ballot measure that voters passed last November.

But as courts begin to process these new expungement petitions, one new ruling in Pima County is making cannabis advocates nervous. If adopted elsewhere in the state, they say, it could threaten hopes for a wave of expungements.

The ruling hinges on record-keeping for old marijuana possession charges, which has proved to be an obstacle for petitioners. In Arizona, before the passage of Prop 207, possession of anything less than two pounds of marijuana constituted a “class six” felony. This made the specifc weight unimportant to document: Three grams, 25 ounces — it was all treated the same under Arizona law, and, in many cases, the amount is missing from police records.

Under Prop 207, though, that information is critical. Only possession charges for 2.5 ounces of marijuana or less are eligible for expungement under the new statute. Here, the problem arises: Many people eligible to have their records wiped cannot prove that they are, in fact, eligible — no clear evidence of how much marijuana they had on their person when they were arrested.

In July, Pima County Superior Court Judge Kellie Johnson dismissed a petition to expunge a case on this basis. There was, Johnson wrote in the ruling, "no evidence regarding the weight of the marijuana involved," and concluded that "if no such evidence is presented” it could not be granted.

The ruling, says Julie Gunnigle, former Maricopa County prosecutor candidate and now political director with Arizona NORML, was "really scary" — particularly for any efforts to expunge charges en masse. “If that ruling stands,” Gunnigle says, “it's going to tie the hands of any prosecutor who wants to do harm reduction work" — by making the process onerous for both petitioners and county attorneys.

Prop 207 had anticipated this issue: Any petition, the statute reads, should be granted unless the prosecutor "establishes by clear and convincing evidence that the petitioner is not eligible for expungement" — thus moving the burden of proof away from the petitioner. Rules of procedure later adopted by the Supreme Court clarified that the court, too, should accept the petition unless it "finds that the offense ... is not eligible."

The Pima County ruling complicates this. “The Court disagrees,” Johnson, a Ducey appointee and a former prosecutor in the Pima County Attorney's Office, wrote. “Affirmative evidence of eligibility is necessary.”

Jonathan Udell, a local cannabis attorney, calls it a "problematic ruling."

“The case is supposed to be expunged unless the prosecutor shows, by clear and convincing evidence, that it is not eligible," says Udell. "And in this case, not only does the prosecutor not show by clear and convincing evidence that it is not eligible — they agreed."

The ruling leaves some room to fight for individual expungement cases. The judge suggests, for instance, that a sworn affidavit by the petitioner could potentially serve as evidence — that, with some effort, petitioners could vouch for themselves. But, Gunnigle argues, "unless the process is universal and automatic, it will not reach those who were most marginalized in the war on cannabis."

That has become clear in recent weeks, as petitions have started to wind their way through Arizona courts. Although prosecutors like Allister Adel have billed the petition system as “accessible and easy to use," that’s not always the case for petitioners.

One petitioner in Maricopa County interviewed by Phoenix New Times describes a challenging process – “kind of an adventure," in his words. William, who requested to only be identified by his first name, had been haunted for decades by a marijuana possession charge from 1996. He had less than three grams of pot on him — “a joint and a half,” he says — but the conviction had dogged him ever since, as had an arrest for possession from 2001, which led to no charges.

William had hoped to submit his petitions on July 12, as soon as courts began accepting them. But his cases were so old that records for them were not readily available online. He didn’t have the case numbers, which are required for the petition, and he didn’t know what court he had been tried in. A legal clinic he visited was unhelpful, he says. Ultimately, he was able to submit his petitions without the help of an attorney — but it required submitting his fingerprints to the Department of Public Safety, and spending hours in line at the courts.

Maricopa County's deputy attorney, Jason Kalish, told New Times that if petitioners do not have their case numbers, they can submit just their name and date of birth to the county: “I’ve been able to find every single one,” he said.

However, when New Times tested the form, it would not accept submissions without a case number. (A spokesperson for the Maricopa County Attorney’s Office clarified that some people have gotten around the lack of a case number by submitting random numbers in the case number field, such as 000-00000-000, but said that's "not ideal.")

Gunnigle says William’s story is familiar to attorneys working with eligible people on their petitions. “Most people, we are finding, don’t keep detailed records of their arrest or conviction."

To retrieve decades-old records, people typically must submit their fingerprints to the Department of Public Safety, as William did, and receive their state criminal record. But that can be a deterrent: “There’s such a lack of trust between people who have been prosecuted under these unjust laws and any engagement with the justice system,” Gunnigle says. And while free legal resources are available, the weekend clinics provided by Arizona NORML and other organizations have reached a tiny fraction of eligible people.

Adding another burden of proof, advocates fear, could further complicate an already inaccessible process.

So far, the Pima County ruling does not seem to have made its way around the state — although Johnson has dismissed multiple cases on that basis. Some attorneys are filing motions proactively: in Maricopa County, for instance, the attorney’s office had filed 2,772 petitions as of August 3, a spokesperson said. Whether the filings will translate into a wave of expungements, however, remains to be seen.