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Low-level marijuana possession is no longer a crime in Colorado, but charges from pre-legalization days still impact lives.EXPAND
Low-level marijuana possession is no longer a crime in Colorado, but charges from pre-legalization days still impact lives.

Colorado AG Talks Marijuana Crime Expungement, Social Equity

Despite being first in the race to legalize recreational cannabis, Colorado has lagged behind in industry diversity and criminal-record clearing. While states such as California, Illinois and Massachusetts all created social equity programs as part of their legalization initiatives, that's something Colorado has failed to address since 2012.

Small steps were made in the last year, with new state legislation that eased restrictions on marijuana industry employment and provided new paths to business ownership, but a measure to expunge old cannabis crimes for actions that are now legal, as well as to institute more expansive social equity reform, were never introduced. This could be the year, however, with lawmakers promising a long-awaited pot expungement bill in 2020, and efforts at both local and state levels for more diverse industry participation starting to unfold.

As one of the highest-ranking law enforcement officials in the state of Colorado, Attorney General Phil Weiser could help lead the way along Colorado's path toward a more inclusive cannabis trade. The AG has already pledged support for legalization and an expungement measure, though he questions how realistic it is to advocate for an automatic expungement program. Since Weiser's opinions on Colorado's cash crop will undoubtedly play a role in how this state's law enforcement treats cannabis going forward, we sat down with the AG to learn more about his thoughts on expungement, industry inclusivity and Colorado's relationship with the federal government on this issue.

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Westword: How would you gauge the current relationship between Colorado and the federal government?

Phil Weiser: It's pretty clear the right side of history will be the one embracing the legalization of marijuana, but we are still dealing with these conflicts. Right now, the obvious and important fix that we've pushed hard for is the SAFE Banking Act, because right now [marijuana] is a cash business, and I think statistics show that robberies at dispensaries are on the rise. We need to fix that, and we pushed hard to get that passed through the House. Ed Perlmutter has been a great leader for that as it moves into the Senate. It's a no-brainer piece of legislation that would help public safety and give the industry a better environment to operate in, so that's a conflict we're working on.

However, I do think the feds have now recognized that the Cole Memorandum was the right norm; [former United States Attorney General] Jeff Sessions's threat to lift it and go after marijuana sales with direct federal enforcement has pretty much vanished.

Now that legal cannabis is firmly established in Colorado, social equity and cannabis crime expungement have been pushed to the front of policy conversation. What is the status of the expungement bill legislators promised this year?

I believe [Representative] Jonathan Singer has been working on this, and the challenge is on the administrative side. What would be ideal is to come up with a clear, easy line that could categorically be magically implemented. The problem is that we've got all these individual cases, and the way it's had to work — based on experiences in Denver and Boulder — is that you have to look at each case, make sure you understand what it is, if it qualifies, and then go through and put in a request to make that change.

San Francisco's cannabis expungement was automatic, while Denver's required an application. How do you think a statewide expungement should be taken on?

From what I understand, based on the administrative system, it's not an easy thing to do automatic expungement. You still have to figure out the record, make sure it's the right crime, and then expunge. So the question is, how do you trigger that process? What's the best structure? We're still looking at it.

We still haven't seen the [legislative] proposal, so we can't comment on that yet. But we want to figure out the best way, and how to get it accomplished. There are real equity issues here, issues of unfairness, that we want to address. I have been bedeviled by how hard this is.

Did you get a sense that cannabis crime expungement was a bubbling issue while campaigning for office in 2018?

I was absolutely thinking about this during the campaign. The principle is very clear: There are people who have served time and have a record for something that is no longer viewed as a crime. I believe that it's appropriate to expunge those records so they don't have any of the disabling effects or stigma. I also think we should get past that stigma, because it's not fair but it's out there, and we have to address this reality of people who've served time having a certain amount of marijuana. The hard part is, how do we do it? That's been the big surprise over the last year: It's not as easy as I wish it were. We can see by looking at the numbers of Denver and Boulder; they haven't gotten huge numbers of people's records expunged.

According to Denver attorneys who help run the city's record-clearing program, past low-level cannabis crimes that are now legal aren't eligible for full expungement under the state constitution. Instead, the crimes are vacated and the records are sealed. Would that need to change in order for statewide expungement to be implemented?

I didn't know there was a state constitutional issue that limited expungement, but I will definitely look into that.

A lot of law enforcement agencies — police and sheriff departments, city and district attorneys and so on — have to be involved in this effort. How does that collaboration work?

One question and concern you may hear from law enforcement or district attorneys, for example, is what if someone pleads to a [cannabis crime], but also a much more serious crime with it? I don't know how often that happens, but I am comfortable that if what you plead guilty to or were adjudicated for is now legal, then I would say you're eligible to have it expunged. If we could do it automatically, obviously, that's easier, [but] I'm not sure we can administratively; our system doesn't work that way.

But we need to figure out the best way to enable this to happen. Some of the people who have these records may have moved out of state, so they may or may not be asking for it. And then the challenge we've had in Denver or Boulder, which, I guess, is record-sealing and not expungement: People don't necessarily know this service is available, so that could be why not a lot of them have come forward.

Do you feel like Colorado is feeling more pressure to address this now that states more recent to cannabis legalization have already began drafting or implementing expungement efforts?

Yes. And, more broadly, we did not handle the social equity issue as well as other states. Initially, not only didn't we have expungement built in, we also had this bar: five years from the time of finishing your sentence, including probation, until you could join the industry. We've now changed that, and I believe it was a good change. But initially, I think we had a fairly punitive stance on that.

Colorado Attorney General Phil Weiser
Colorado Attorney General Phil Weiser
Colorado Office of the Attorney General

Do you think social equity within the cannabis industry should be the government's responsibility? If so, how do you think increasing diversity in legal cannabis should be approached?

There are three topics that I think fit in here: One is expungement, and we need to end records, and in this case, ban the box, or when employers ask you right off the bat if you have a record. Second, I believe we shouldn't be limiting people who can be in the industry, and we moved that five-year requirement to one year after finishing your sentence. That's a pretty modest limit, and more appropriate, I think. Third, we now have an accelerator program [to provide marijuana business licenses to people from low-income areas]. I think we should find ways to support people to get into the business and create opportunity. That's something I think the government can help do, and I also think there's a huge role for the industry to do that.

Controlling who does and doesn't get a license is a city's responsibility. Where should the cities fall into this? Denver or Boulder have their own record-clearing programs, but what about industry diversity?

Cities are experimenting. First, cities and local governments have to decide if they want to allow marijuana sales. Once they do so, they have some flexibility to encourage different approaches within the state regime. They also have flexibility in using the tax revenue that they get from this. I know Denver has thought hard about this issue, and I believe they'll be helping us at the forefront of this.

Cities new to commercial cannabis over the last five years — Aurora, Thornton, Longmont and border towns like Dinosaur — have large chain presences, where big dispensary operators continue getting bigger. The local governments argue that experience and a résumé are important in a new, federally illegal industry. How can social equity be properly addressed when there are few licenses to go around?

That's a big challenge to the economy overall. Mom-and-pops in all sorts of industries are having a tougher time. One way to square this circle is when bigger businesses, like LivWell, for example, have their own commitments to working with traditionally disadvantaged groups to make sure they get an opportunity.

How do you make sure companies follow through on promises like that?

Sunlight is the best of disinfectants. You ask for reporting and transparency on their distributors and job opportunities. This has happened in a lot of industries. We're talking about marijuana, but there are others, like the tech industry. What's the record of employing people of color or women in the tech industry? Industries and government offices should all be asked about their track records on opportunities. It's an important conversation we should all be having.

Could new laws allowing cannabis delivery and social consumption businesses create an opportunity for more social equity in Colorado's cannabis space?

One of the challenges when you have a new license is that if you want to give people opportunity, how do you do it in a way that is meaningful? Part of what has happened in the past with some of these preferential licensing systems is someone gets a license from it, but then it just slips into someone else's hands and you're not accomplishing your goal. I want to make sure that these programs are meaningful and actually addressing our concerns.

Does industrial hemp have a social equity component to it, as well? You don't hear that brought up often.

I think hemp is more like traditional farming than the type of product marijuana is — very different supply chain and very different usage. I'm not sure the social equity focus that is appropriately on marijuana is as natural for hemp. I'd like to see all industries be diverse and inclusive, and we need that in farming, but I do think that's a different conversation [from marijuana].

The only other two Colorado AGs in office after the plant was legalized in 2012, John Suthers and Cynthia Coffman, vocally opposed the movement. How do you take on cannabis crime expungement or industry expansion after your predecessors didn't want this here in the first place?

It's a culture change. There are people whose mindset viewed marijuana as a law enforcement issue, and that people who are selling or using marijuana should be put in jail. Now we're moving to a regulatory mindset, where this is a product that can be dangerous if a driver is under the influence, for example, or it's consumed in large quantities; it can also be sold to people underage. But we need to address it and make sure it's used properly.

It's regulated and taxed now, and that's a big culture change. We also have to figure out, to the equity point, how do we look back to past decisions, like putting people into jail, and try to make some amends, like expungement or opening up opportunity in the industry.

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