Monday Morning Thoughts: Is It All Just Propaganda Coming Out of the DA’s Office on Marijuana Expungements?

You always need to check the fine print on Yolo County DA press releases.  Let’s be clear: it is a good thing that the DA’s office has moved to expunge “all eligible marijuana-related convictions.”  One question to ask – which convictions are covered?  And also – is this program really that unique as the press release claims?

In their press release, they argue: “In partnership with Code for America, Yolo County was the first in the state to use the ‘Clear My Record Application and Implementation Blueprint.’ By using the technology and step-by-step guide, the DA’s Office was able to quickly identify individuals with marijuana-related convictions and petition the court to reduce, dismiss and seal marijuana convictions still remaining on an individual’s criminal history.”

It sounds good. But let us unpack three key points here.

First, Californians approved Prop. 64 in November 2016. But what the press release doesn’t state is DA Jeff Reisig opposed Prop. 64.

Big deal you say?  Consider this: he was virtually alone.  He was a listed opponent of the statute; according to Ballotpedia, statewide, only four DAs were listed opponents of Prop. 64 – Jeff Reisig, Tony Rackauckas of Orange County, Mike Ramos of San Bernardino County, and Anne Marie Schubert of Sacramento County.

Interesting company – all four of those DAs ended up being challenged two years later, with two of them losing, and Mr. Reisig nearly going down.

The electorate in Yolo County overwhelming supported Prop. 64.

Is that really that important? Yes and no. The DA’s office wants to claim credit for being progressive and doing something to clear marijuana convictions, but if they want credit for that it is important to note that they didn’t even want to do this in the first place – and Mr. Reisig, who has claimed to be progressive in his policies, actually opposed Prop. 64 and was one of the few DAs in the state to do that.

Second, let us unpack the “first in the state” claim.  It is not clear that they are first in the state on anything.  But the reality is that San Francisco announced on February 1, 2018, “San Francisco will clear the convictions of thousands of people who were charged with misdemeanor possession of marijuana dating back to 1975.”

And, “The San Francisco District Attorney’s office said it will retroactively apply Proposition 64.”

That was 18 months ago. They then spent a year to review past convictions.

Reported NPR in February of this year, “Several California cities are taking on the task of expunging records, but San Francisco is the first one to finish the job.”

“It was the morally right thing to do,” San Francisco District Attorney George Gascón told the Los Angeles Times. “If you have a felony conviction, you are automatically excluded in so many ways from participating in your community.”

So, many other cities and counties are embarking on this.

In fact, under AB 1793, sponsored by Assemblymember Rob Bonta last year and signed into law on September 30, the DOJ was required, prior to July 2019, “to review the records in the state summary criminal history information database and to identify past convictions that are potentially eligible for recall or dismissal of sentence, dismissal and sealing, or redesignation pursuant to AUMA. The bill would require the department to notify the prosecution of all cases in their jurisdiction that are eligible for recall or dismissal of a sentence, dismissal and sealing, or redesignation. The bill would require the prosecution to, on or before July 1, 2020, review all cases and determine whether to challenge the resentencing, dismissal and sealing, or redesignation.”

And the kicker, “The bill would require the court to automatically reduce or dismiss the conviction pursuant to AUMA if there is no challenge by July 1, 2020.”

So what the county is doing is following state law.

Again, the DA’s press release states: “In partnership with Code for America, Yolo County was the first in the state to use the ‘Clear My Record Application and Implementation Blueprint.’ By using the technology and step-by-step guide, the DA’s Office was able to quickly identify individuals with marijuana-related convictions and petition the court to reduce, dismiss and seal marijuana convictions still remaining on an individual’s criminal history.”

But in April, the Huffington Post reported, “District attorneys in both Los Angeles and San Joaquin counties said Monday that they’re partnering with Code For America to implement an algorithm that quickly identifies convictions eligible under Prop 64, which legalized recreational pot use in California and allowed authorities to clear past marijuana-related convictions from people’s records.”

So it is not clear what Yolo County is first in the state on here.  It is also not clear that Yolo County is doing anything other than following state law – a state law that the Yolo DA OPPOSED in 2016.

Finally, Paul Fullerton, who plead to misdemeanor marijuana charges last year, told me this weekend that he is not covered under this. So now we have to question exactly whom all this covers.

Bottom line, I think it is important to note that there continues to be a large difference in the claims coming out of the local DA’s office and what that actually means.

In 2016, Paul Fullerton had his shop, Lil’ Shop of Growers in Woodland, raided by YONET.  Last year, he pleaded no contest to misdemeanor drug charges after the trumped up felony drug, child endangerment and weapons-related charges against him and his wife were dismissed.

The case, which lasted more than two years, began with allegations that Mr. Fullerton unlawfully sold marijuana out of the business for profit.

Under current law, this action – even if true (which Mr. Fullerton has always denied) – would be much less serious.

Then Davis Police Lt. Paul Doroshov told media sources, “At the time this case happened, this was illegal…  If he did this today it would be a much lesser crime.  We’ve evolved too with the laws, but Mr. Fullerton’s case happened before that.”

Was Mr. Fullerton one of the cases that was dismissed under the action by the DA’s office?  No, he says.

Mr. Fullerton has explained to the Vanguard other than YONET targeting his business, they were repeatedly sending in undercover agents to attempt to sting him.  One day, however, a man comes in with a sob story – and they nail him.

However, most of the case is completely overblown, with trumped up child endangerment, weapons and charges against his wife that they couldn’t sustain.

A press release from the DA’s office announced “that his office has cleared 728 marijuana-related convictions as part of a criminal justice reform project between the District Attorney’s Office and Code for America.”

“It’s like law enforcement operates on a mentality from 20 years ago. It’s silly,” his attorney, Joseph Tully, said. “But it has real consequences to real human beings, real lives.

“Paul isn’t a criminal. He wasn’t illegally selling marijuana out the back door of his business. They set him up,” Mr. Tully told media at the time. “It just shows you how wide the net is, that everyone can fall into it, if the government wants to get you.”

In an interview with the Vanguard, he referred to his recent book where he called this “f- you justice.”

The question then remains – who is eligible for expungement and who is not?

—David M. Greenwald reporting