Voters Across the U.S. Decide on Criminal Justice Measures
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Voters Across the U.S. Decide on Criminal Justice Measures

On Nov. 3, Americans decided how people who are suspected, accused or convicted of cannabis offenses move through the criminal justice system.

November 17, 2020

In 2020, many Americans are protesting criminal justice funding and tactics—some for the first time, growing and diversifying this coalition.

Leaders from the cannabis industry and industry-adjacent organizations have written and spoken about how the architects of the War on Drugs used cannabis as a means to imprison people of color and opponents of the Vietnam War and some of the effects of prohibition that continue today.

Seven out of 10 Americans now support legalization. Fifteen states and Washington, D.C., have legalized cannabis for adult use, and 36 states and D.C. have legalized medical cannabis, not including CBD-only states. Only a handful of states have not decriminalized.

However, prohibition continues to lead to disproportionate arrests of Black people, restrict job prospects and other opportunities in society for those who are arrested, and prevent prisoners from providing for their families. In states where cannabis is legal for adult use, people are serving time for cannabis offenses for which they were arrested before legalization.

Legalization activists continue the push to legalize cannabis federally, and in the meantime, in individual states, these efforts are gaining momentum, as evidenced by the fact that six pieces of legislation passed in five states last week to legalize adult-use and medical cannabis.

Also, on Election Night, voters decided on several criminal justice measures. Below are descriptions of some of them and how they relate specifically to cannabis.

Oklahoma – State Question 805

Oklahoma State Question 805, which would have limited allowable punishments for certain nonviolent felonies, failed 61.08% to 38.92%.

The initiative petition stated that except with regard to violent felonies, “a former conviction for one or more felonies shall not be used to enhance the statutorily allowable base range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony.”

Any sentencing and criminal justice reform in the state would affect cannabis, said Ryan Kiesel, an Oklahoma attorney and political consultant who worked on the SQ 805 campaign in his former role as executive director of the ACLU of Oklahoma.

“It’s just a fact that even with a robust medical marijuana program in the state of Oklahoma, there are still people that are going to prison for marijuana offenses in this state,” Kiesel told Cannabis Business Times and Cannabis Dispensary. “I think that that is just a truism, so when we look at drug law reform and sentencing reform, including sentence enhancements, they’re tied together in that way.”

Though about 10% of Oklahoma residents possess patient licenses in the state's medical marijuana program, Kiesel said people continue to be arrested and imprisoned throughout the state for cannabis.

“I think that there is a sense that that is enough in terms of a remedy to the criminal justice issues that surround marijuana, and it's just simply not,” he said.

Kiesel noted a recent case where a man, Antonio Lucio, was caught possessing 1.3 ounces of cannabis with intent to distribute and took a plea deal for a seven-year prison term. Because Lucio had prior felony convictions, prosecutors were legally allowed to seek a maximum life sentence, according to the Tahlequah Daily Press. If SQ 805 passed, Kiesel said, Lucio wouldn’t even be serving seven years for the recent possession with intent to distribute conviction.

Vincent Sliwoski, attorney at Harris Bricken, who was not involved with SQ 805, told CBT and CD of its failure: “I think it is unfortunate that you could have people theoretically arrested for a cannabis crime who have had prior convictions and they’re subject to additional punitive matters, and will continue to be, because 805 didn't pass.”

“The political failure of State Question 805 I don't think has anything to do with cannabis,” Kiesel said; the debate around the question came down to other concerns such as domestic violence, he said, not cannabis offenses.

Looking ahead, Kiesel said the state legislators may consider exploring adult-use legalization to fund a recent Medicaid expansion. If this were to happen, it would follow an attempt to legalize cannabis through a 2020 ballot initiative that was thwarted by COVID-19.

He said: “I think that it's important for the people of Oklahoma and I think it's important for policy makers to realize that while we've made enormous strides and we've seen just remarkable cooperation from Republicans and Democrats in helping those strides occur, that there's still a lot of work to be done, on everything from addressing the criminal justice aspects of it to ensuring that the state is able to capture as much revenue from an adult-use program, eventually, that we can invest in things like education and healthcare as possible.”

Philadelphia – Question 1

In Philadelphia, voters overwhelmingly passed Question 1, a city charter amendment “calling on the Police Department to eliminate the practice of unconstitutional stop and frisk,” a stop without reasonable suspicion.

“In the last five years, police listed the smell of weed as the reason for more than 25,000 car stops and a growing number of searches,” the Philadelphia Inquirer reported in an October 2019 article. But, per the Inquirer, citing the Defender Association of Philadelphia, the city’s police in 2019 found contraband about a fourth as often as they did in 2014.

Michael Mellon, assistant defender at the Defender Association of Philadelphia, told the paper that the low number of successful searches, paired with racial disparities, would suggest that Philadelphia police either don’t know what cannabis smells like or they don’t actually smell it.

“Philadelphia police spokesman Capt. Sekou Kinebrew said the police and the Philadelphia Law Department are still evaluating the accuracy of the defenders’ data analysis,” the Inquirer story reads. “But the law, he said, is clear: ‘The courts still recognize that the odor of marijuana constitutes probable cause for the search of a vehicle.’”

Neither the Philadelphia Police Department nor the Defender Association of Philadelphia could be reached for comment by CBT and CD by press time.

Mary Catherine Roper, deputy legal director at the ACLU of Pennsylvania, told CBT and CD that the group filed a lawsuit in 2010 against the police department alleging unconstitutional stop and frisk and reached a consent decree in 2011.

“The city has been working toward compliance with that consent decree since 2011, with some marked improvement after the election of Jim Kenney [as mayor] and the installation of Richard Ross, who was our police commissioner until [August 2019],” Roper said. “In fact, one of the things that is notable about stop and frisk in Philadelphia is how little it seems to be connected to crime—how seldom it turns up a gun—it doesn't even turn up drugs very often.

“A huge number of the stops in Philadelphia are for what we call quality-of-life issues, like open containers or being in a park after it's closed—or jaywalking, even. We've been pushing a lot of pressure on the police department to stop using stops in those contexts.”

The ACLU of Pennsylvania was not behind this year’s Question 1, Roper pointed out; that was Philadelphia City Council.

Sliwoski, who was also not involved, said: “I view things like this, where you're amending … to say it can't happen, as good, but mostly symbolic. I don't think it really changes the law; that is the law already. Stop and frisk is unconstitutional under the Fourth Amendment.

“Philadelphia voters are basically saying, ‘We get behind that, and we want to make it a loud and clear point to the extent maybe a court in this jurisdiction hasn't ruled on it yet, or the Supreme Court of the United States hasn't ruled on it yet, that this is simply not allowed in our policing pattern here locally.’”

Because law enforcement stops often occur because of the smell of cannabis, it makes sense that Virginia has passed legislation to disallow the smell from serving as the sole basis for a stop, said Tamar Todd, who lectures at the University of California, Berkeley, on cannabis law, and the University of California, Davis, on drug policy; is legal director of the Washington, D.C.-based New Approach PAC; and works as a private consultant.

“It just goes right to the heart of the issue of cannabis and policing that's so problematic and leads to so many police interactions that wouldn't happen otherwise,” Todd said.

Judges in Maryland, Massachusetts and Pennsylvania have ruled that the odor cannot be used as bases for traffic searches, the Associated Press reported in 2019.

But that is still occurring across the country, Todd said, including in states that have legalized for adult use, such as California.

These activities can affect people who work in cannabis establishments, she said, adding: “There's a lot of legitimate reasons why someone would smell like cannabis or [law enforcement] might pull over a car and the car smells like cannabis—like if they work in cultivation or if they are involved in the industry, or all sorts of different reasons that potentially, if that policing issue isn't addressed and you have a legal cannabis market, employees of cannabis businesses, all the consumers, all the people, are vulnerable to being stopped and searched for an entirely legal activity or for their employment.”

California – Propositions 17 and 25

In addition to numerous local initiatives, Californians voted on state criminal justice measures Nov. 3. They passed Proposition 17, a constitutional amendment to restore former prisoners’ ability to vote while on parole; and voted down Proposition 25, a referendum to end cash bail in the state.

Dominick Volpini, vice president of vaporizer hardware company Cloudious9, said about Prop 17 in a prepared statement to CBT and CD: “With felony cannabis arrests still making up a large percentage of nationwide drug arrests, Prop 17 paves the road for individuals affected by the war on drugs in other states to regain some of their freedoms post release.”

“It's going to affect, positively, a lot of people who have been thrown in prison for cannabis crimes and other crimes that were crimes at the time that they were incarcerated,” Sliwoski said of Prop 17. “I think it makes sense if you just think about the context of prisons; it's supposed to [be] rehabilitative, and when your term is over, you’re supposed to be this restored and improved member of society, so why shouldn’t you be able to vote?”

However, like many things, voting restoration can be subject to legal challenges, Todd pointed out. In September, following a successful 2018 amendment to restore voting rights in Florida, an appeals court ruled that residents who had been convicted of a felony would have to pay any outstanding fines and fees before voting.

Of voting restoration, Todd said: “I think it's one step to bringing people back into community and making them part of a shared investment in society. Of course, I want restoration of voting rights. I don't think you should lose your voting rights even while you're incarcerated. I think they're fundamental to being a citizen. I think voting rights are one thing that's a collateral consequence that's often stripped away.”

(Todd said she also agrees with voters in Nebraska and Utah who decided Nov. 3 that there should not be exceptions for slavery as a means of criminal punishment in those states’ constitutions, as there is in the U.S. Constitution. “I think [these amendments] are interesting because it goes to this larger question of why we have all these people incarcerated and how those little exceptions in the law can sometimes become the rule,” she said.)

Regarding Prop 25, the referendum to end money bail in California, Todd said she is not well-versed on it, but: “The ACLU of Southern California opposed it, the ACLU of Northern California was neutral on it, and a lot of people look to those organizations for guidance.”

Those ACLU chapters and individuals such as California Hawaii NAACP President Alice Huffman have addressed concerns about the risk assessment tool that would have replaced the cash bail system, arguing that it could be discriminatory against certain races and socioeconomic classes.

Addressing Prop 25, Sliwoski pointed out to CBT and CD that he nor his colleagues at Harris Bricken are criminal lawyers. “But because we're in this industry,” he said, “I know about these issues, and I know about them from teaching a law school class on cannabis law and policy.

“So, with that sort of background, I can tell you that bail schedules can vary quite a bit, according to locality, type of crime, residency. But there are general rules of thumb in most places, like … the more serious or more dangerous the crime is, the higher that the bail amount is going to be.”

Sliwoski added of money bail: “The argument against it, which I think is a good argument, is that it's racist and classist and that generally people who are poor, or people who have been historically incarcerated at greater rates, which are minorities and marginalized people, aren't able to step up and pay the bail bonds and be released from prison … unlike wealthier people, who can more generally afford cash bail.”

But, as Todd said, he added that people have raised the argument of what could replace it.

Portland, Ore. – Measure 26-217

Residents in Portland, Ore., a regular site of protests since the killing of George Floyd in May, voted 81.62% to 18.38% to pass Measure 26-217, which amends the city’s charter to authorize a “new, independent community police oversight board.” (Other law enforcement oversight bills recently passed in multiple cities, such as San Francisco, Berkeley, Calif. and Kyle, Texas.)

In Portland, the oversight board’s power will include the ability to subpoena documents and discipline and fire police officers, according to the charter amendment.

The board’s duties will include investigating the use of deadly force and deaths in custody, as well as “injury [and] discrimination against a protected class,” the latter of which Sliwoski described as “cases where an officer is accused of violating somebody's constitutional rights, so … everything on that continuum [from stop and frisk] all the way through deadly force.”

Given the broad language of the amendment and the legal status of adult-use cannabis in Oregon, Sliwoski said the measure has a tangential relationship to cannabis.

“It's more oriented toward all sorts of policing and crime issues, but I could see a situation where somebody was in possession of more cannabis than the daily limit by a couple of ounces or if somebody was 19 years old and not 21 years old walking around with some cannabis,” Sliwoski said. “There’s various situations where it could come into play."