Armaline and Ramirez: Santa Clara County needs to expunge cannabis offenses

Most people are now well aware that the California Adult Use of Marijuana Act (AUMA) — or Proposition 64 — legalized recreational cannabis in 2016.

But the AUMA also allows those with certain cannabis offenses to have their records reduced and/or expunged. This is one of the most critical aspects of the AUMA in that it provides for appropriate restorative justice measures as part of a sustainable transition away from the failures of criminal cannabis prohibition.

Record clearance can make a world of difference in an individual’s life and the lives of their families in that drug convictions can restrict a person’s access to good jobs, affordable housing, financing and higher education (financial aid). This is why legal scholarship argues in favor of its application in all states pursuing cannabis legalization.

Following passage of the AUMA, the California Legislature passed AB 1793. Recognizing the practical and ethical problems with having people petition for their own record clearance, the bill demands that the state and local District Attorneys review and clear these records proactively by July 1, 2020. But California’s major metros are not waiting to get this done, with Santa Clara County as one notable exception.

In February of this year, San Francisco DA George Gascón announced that his office would be working with the Code for America’s “Clear my Record” project to proactively review and clear or reduce over 9,000 cannabis convictions in compliance with AB 1793. After watching San Francisco County commit to review a large number of convictions in such a short time we reached out to Code for America in March to ask about how this partnership worked:

Code for America has been working to transform the way government delivers services to those impacted by the criminal justice system by reimagining the California record clearance process using technology. This was possible through a strong and productive partnership with the San Francisco District Attorney’s Office who was committed to making government work better for the people it serves. Through this collaboration, Code for America developed the technology [algorithmic software] that reads criminal conviction data and determines eligibility for thousands of convictions in just a few minutes.

The time and cost of reviewing these records and completing record clearance petitions by hand previously stood as a potential impediment for county District Attorneys’ offices to abide by the demands of AB 1793.

Indeed, SJSU Students Against Mass Incarceration held a public forum on Nov. 28 of last year with representatives from the Santa Clara County DA and Public Defenders’ offices and the author of AB 1793 (Assemblymember Rob Bonta), where cost and time were discussed as major hurdles to complying with the new law.

While perhaps a reasonable concern at that time, it now seems absurd for Santa Clara County to use this justification for delayed, incomplete or non-compliance with AB 1793, as Los Angeles and San Joaquin counties also announced their collaborations with Code for America on April 1.

Notably, Los Angeles has by far the largest number of eligible convictions (over 54,000) to process in the state, suggesting the capability of this approach in the most challenging metropolitan areas. When we spoke to Code for America in March, they explained their goals beyond the initial announcement from San Francisco:

The counties in the Clear My Record cohort will set a standard for how to reimagine the record clearance process, specifically to implement AB 1793. This work creates a blueprint for the future — the development of policy and technology that expands, streamlines and automates the record clearance process at scale. Code for America plans to utilize lessons learned from these pilot projects to create a scalable blueprint that counties in California and across the country will be able to adopt. Code for America has a goal of helping to clear 250,000 convictions across the country in 2019.

Santa Clara County is known to be one of the most progressive counties in the Bay Area. However, in regards to providing restorative justice and life-changing opportunities for thousands of residents, county officials have not made it a priority to follow the lead of San Francisco or Los Angeles to date.

Santa Clara County had, and continues to have, an opportunity to work with Code for America (or any alternative software developers of its choice) to comply with AB 1793. And to be clear, absent legal challenge (so far not announced), its compliance is not a matter of choice or convenience — it is the law.

We represent the San Jose Cannabis Equity Working Group, SJSU Students Against Mass Incarceration and the SJSU Human Rights Collaborative in demanding that the Santa Clara County District Attorney’s office immediately pursue and announce their plan for automated, top-down record clearance in compliance with AB 1793.

We encourage organizations and members of the general public to join us in soliciting the DA’s office and Board of Supervisors to meet this demand, and make these announcements with no further delay. SJSU Students Against Mass Incarceration will hold a joint press conference on May 1 to present these demands and invite public participation on this issue.

The recent announcements by San Francisco, Los Angeles and San Joaquin Counties should leave us all asking: “If they can do it, why can’t we?!” Let’s work together to make Santa Clara County a model for restorative justice rather than a skeptical holdout in the face of effective solutions.

William Armaline is the director of San Jose State University’s Human Rights Collaborative and Elizabeth Ramirez is an organizer with Students Against Mass Incarceration.