Criminal Re-sentencing after Prop 64: The Basics
Curious about what happens to marijuana criminal sentences now that Prop 64 has passed? Here's a simple explanation:
De-Criminalization & Penalty Reductions
The Adult Use of Marijuana Act (AUMA) either legalizes or reduces the criminal penalties for a wide range of adult cannabis use activity. For example, transporting or giving away less than an ounce of weed was a misdemeanor before Prop 64 - now it's legal. Growing up to 6 cannabis plants at home used to be a felony resulting in jail time of up to 2-3 years, but is now legal. Additionally, minors committing many of these same offenses will now receive counseling, community service and drug education rather than criminal records and jail time.
From a social justice perspective, this is a very positive thing, as previous penalties disproportionately affected poor people and people of color. Eliminating and reducing penalties also alleviates a criminal justice system that is overburdened. AUMA did not repeal all penalties for marijuana, but allows for downward re-sentencing for people with priors, expungement and destruction of records, early release from incarceration and greater justice for juveniles.
Petitions for Sentence Reductions
AUMA also allows people convicted of marijuana crimes to petition the court to reduce their sentences if they wouldn't have been guilty (or would've been guilty of a lesser offense) had AUMA been in effect at the time of their offense. If the petitioner meets this criteria, then no hearing is needed and the court will grant the petition. However, a petition may be denied if the opposing party can show by clear & convincing evidence the petitioner doesn't meet this criteria (e.g. their crime involved other conduct that would still be considered illegal under AUMA).
Felony convictions will be reduced to a misdemeanors or infractions. Misdemeanor convictions will be reduced to infractions. The law prohibits re-sentencing that results in longer sentences or reinstatement of previously dismissed charges under a negotiated plea agreement.
Currently Serving Time
A person currently serving a sentence who is re-sentenced under AUMA will be given credit for time served. They will be released from incarceration, but will still be subject to post-release supervision for no longer than 1 year.
Previously Served Time
A person who has completed their conviction sentence can file an application to have the conviction dismissed and sealed or re-designated as a misdemeanor or infraction. This is a very positive development for previously "convicted felons" who have trouble finding housing and/or employment.
Court's Discretion to Deny Petitions
However, AUMA does give courts discretion to deny petitions if the court determines that granting a petition would pose an "unreasonable risk of danger to public safety." What does this mean? Courts will look at the conduct involved in previous marijuana-related offenses in determining whether the offender poses a future safety risk. If the offense involved, for example, a sexually violent crime, an underage sex crime, homicide or other serious felony, the court may deny the petition if there is an unreasonable risk that the petitioner will commit a new violent felony if released.
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