Upfront: Weed the People

California sued over sellout to Big Bud; North Bay district attorneys say no to mass expungement of cannabis convictions

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A recent lawsuit charges that the California Department of Food and Agriculture’s lifting of grow limits is contrary to what voters agreed to when they passed Proposition 64 in 2016.

Back in November, the state moved to lift acreage limits in place to protect small-time, legacy pot growers as part of the Proposition 64 rollout—causing great consternation and outrage among lawmakers and cannabis activists.

The late-game maneuvering as Prop 64 was implemented, undertaken at the California Department of Food and Agriculture (CDFA), prompted a lawsuit several weeks ago by the California Growers Association (CGA).

The CGA is a lobbying organization based in Sacramento that’s been at the forefront in ensuring that the state’s “legacy” growers aren’t squeezed out in favor of Big Bud.

The suit, filed in the Sacramento County Superior Court, charges that the CDFA’s lifting of one-acre grow limits that were to be in place through 2023 is contrary to what voters agreed to when they passed Prop 64 in 2016.

“We were shocked to see this recommendation move forward,” says California Senator Mike McGuire via email. His North Coast constituency includes many small-scale cannabis growers who’ve been operating in the shadows for decades—and were wary over legalization for exactly this reason.

“For the past 24 months,” McGuire says, “we were all on the same page to protect small family farmers who are the heart of California’s cannabis industry. Instead, the loophole created by the new regulations will hurt small family farms and instead rolls out the red carpet for the Walmart of weed.”

Attorney Patrick Soluri represents the CGA in the suit. In an email, he laid out his legal argument, noting that the goals of the Adult Use of Marijuana Act, and the pot omnibus law MAUCRSA (the Medicinal and Adult-Use Cannabis Regulation and Safety Act), “was to bring existing small operations out of the shadows so that they could contribute tax revenue and comply with environmental laws.”

The rescission hinges on an argument offered by large-scale growers that smaller operators weren’t going to survive new regulatory costs associated with MAUCRSA. Steve DeAngelo of Oakland’s Harborside dispensary made that argument to the Sacramento Bee when the lawsuit was filed two weeks ago. “[T]here is no reasonable debate,” says Soluri, “that larger cultivation operations can easier absorb increased regulatory cost of compliance than smaller operations.”

Soluri cites the CDFA’s economic impact analysis of the five-year carve-out. Without the protection, Soluri notes, “as California voters intended, these existing small operations will simply not even attempt to become legal.”

Now, as Soluri notes, California risks having two cannabis markets, “a legal market comprised of large, corporate agri-business and an illegal market of small operators.”

The CGA’s executive director, Hezekiah Allen, said that every iteration of the legalization push and every regulatory analysis of its impacts, included the 2023 rule. He suspects that pressure from state growers angling for a bigger piece of the cannabis pie drove the CFDA’s reversal. In an email, CDFA spokesman Steve Lyle declined to comment on the lawsuit.

Lt. Gov. Gavin Newsom headed up a blue-ribbon cannabis commission whose “Pathways Report: Policy Options for Regulating Marijuana in California,” released in July 2015, said the California legalization regime should “ensure that small and mid-size entities, especially responsible actors in the current market, have access to the new licensed market, and that the industry and regulatory system are not dominated by large, corporate interests.”

In an interview, Newsom, who is running for governor, says this of the CGA-CDFA dust-up: “Well, the governor took the spirit of what he believed was Prop 64, and that was his framework for the first application of the rulemaking. But I completely appreciate the concern because the spirit of what we were trying to achieve with the five-year prioritization was to protect those farmers. I went up there personally, in Humboldt, and made that case to everybody there. So I feel a great sense of responsibility to have the backs of those folks, and I’m equally concerned. Again, it’s one of those instances where there’s only so much—well, I’m not the governor. I’m not making excuses, by the way, but respecting what the legislature and the governor just did, I can assure you that at this time next year there will be some amendments and adjustments.”

So does Newsom disagree with the CDFA’s interpretation of the acreage rule?

“I get the spirit of it,” he says. “I see the argument. God, I am so black and white in so many ways—because I am the guy who said yes to legalization, marry gays, go after the NRA, etcetera—on this, though, there are legitimate arguments from both perspectives. I want in real time to see the evidence of what actually occurs on the ground—not what people are asserting, not what people are suggesting—I want to actually see what happens over the next few months when the dust settles. And I will be very, very sensitive to those facts on the ground and the reality of the situation—not the promoted concerns.”

Just a few days after the suit was filed, a Newsom quote popped up in a Los Angeles Times story that broke the news that San Francisco District Attorney George Gascón plans to clear nearly 40 years’ worth of misdemeanor cannabis possession convictions in that city.

In a proactive gesture of mass expungement celebrated by everyone from Newsom to everyday potheads, the Democratic Gascón said his office would erase nearly 3,000 misdemeanor pot convictions dating back to 1975. He also pledged to take a look at reclassifying about 5,000 pot-related felony convictions as misdemeanors.

Why 1975? Well, for one thing, 1975 was a big year in the annals of California cannabis history. That year the state passed SB-85, aka the Moscone Act, which took a big step toward total decriminalization when it reclassified cannabis possession of up to an ounce as a simple misdemeanor punishable by a $100 fine.

Forty-plus years later, most news stories about the Gascón decision were larded with questions to the effect of, will other California counties take up the call?

“With all due respect to him, George has a much larger staff than we do,” says Marin County District Attorney Edward Berberian, Jr. “and we don’t have the attorney resources that would let us do that here.”

Berberian’s office will not proactively move to expunge cannabis convictions, he says, as he cited the expungement process afforded by Prop 64, which legalized the sale of recreational cannabis, and pledged to work with people who come forward to have their records reviewed and cleared. “We’re not going to be a roadblock to them.” he says. “We’re going to work with them.”

Sonoma County District Attorney Jill Ravitch is similarly sticking to the Prop 64 process. “You know, at this point I’m not planning to follow the lead of Mr. Gascón,” says Ravitch, who is up for re-election this fall. “I think that there’s a petition process in place and if the voters had wanted us to take the affirmative action of recalling and dismissing all of those cases, it would have been part of the initiative. So I plan to follow within the confines of what the initiative requires. And so I’m working with the public defender and I know that we’ll be reviewing those petitions and we will be taking appropriate action.”

Prop 64 grants judicial latitude to expunge pot cases if the underlying crime that gave rise to the original charge is no longer a crime. For example, a person arrested in possession of an ounce of cannabis in 2015 was no longer a criminal as of 2016, and could set out to have the conviction expunged from his or her record.

According to the state’s Judicial Branch online portal, as of November 9, 2016, Prop 64 authorizes the “resentencing or dismissal and sealing of prior, eligible marijuana-related convictions.”

The expungements would likely be of some benefit to cannabis-economy participants from the pre-Prop 64 period.

Between November 2016 and December 2017, counties across the state had received 2,700 resentencing petitions and 1,820 re-designation petitions, on top of 365 petitions for relief involving juveniles. In that time, San Francisco received a total of 232 resentencing or re-designation petitions, according to the court portal.

Alameda, Los Angeles, Riverside, Sacramento and San Diego counties also accepted hundreds of petitions over that time. Sonoma County fielded 24 adult petitions over the same period; Marin County fielded 19; Mendocino, zero. Napa County did not provide data to the court.

California’s cannabis-legalization protocols also allow for felony enhancements in certain cannabis-related crimes.

According to the National Organization for the Reform of Marijuana Laws: “Felony enhancements may be charged in aggravated circumstances such as repeat or violent prior offenses, environmental offenses, involvement of minors. Also, prosecutors can charge violators with felony conspiracy to commit a misdemeanor if more than one person is involved in the crime.”

But Prop 64 also allows certain cannabis crimes that were felonies to be knocked back to misdemeanors. Those include, for example, the individual cultivation of more than six plants, possession-with-intent charges and the sale or transportation of pot.

The plan to stick with the Prop 64 expunge-the-conviction protocols rankled some in the county’s pro-pot community. Oaky Joe Munson, a grower in the Sonoma County town of Forestville, says he’s not surprised that Ravitch won’t go along with the Gascón program. He says he doesn’t care that he has misdemeanor and felony charges on his jacket, but he recognizes that it’s a critically important issue to some people to clear their names, whether they’re growers or not.

“I don’t care if I have those on my record even though I’ve never been convicted of a felony,” says Munson, whose medical crop was confiscated and destroyed by local law enforcement in 2015. “The damage is already done when the cops come” and destroy the plants, he says.

Munson’s been providing medical cannabis to AIDS patients for years and says Gascón’s effort “is a step in the direction” that will help people who are trying, for example, to get a government job, or any job for that matter. “I’m glad to see a big metropolitan region go for it,” he says.

Jennifer Wadsworth contributed reporting to this article.

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