An unorganized State House and a gap between the beginning of session and February 13, when Gov. Michael J. Dunleavy will release the FY 2020 budget, have provided legislators in the senate a rare opportunity to deliberate actual legislation. Friday afternoon, this was translated into a hearing on Senate Bill 8, authored by Senate Minority Leader Tom Begich (D-Anchorage), with a goal of allowing Alaskans convicted of minor marijuana crimes the chance to partially seal the public records highlighting the offense.
In 2014, Alaska approved a ballot initiative to legalize recreation marijuana. The state became the third in the country to approve such a measure, allowing residents 21 years or older to possess up to an ounce of cannabis. Since then, the total number of states embracing the post-prohibition status has swelled to ten, plus Washington D.C. 18 states still consider marijuana fully illegal, with the rest falling somewhere in between. Marijuana remains a Schedule I Drug at the federal level, defined as having “no currently accepted medical use and a high potential for abuse,” according to the U.S. Drug Enforcement Administration. Schedule I substances put marijuana alongside heroin, LSD, ecstasy, and peyote, for contrast.
SB8 pertains to Alaskans who have been convicted pre-legalization for low-level, stand-alone marijuana offenses of possession under one ounce. Under current law, those convictions remain on the books as a misdemeanor despite the offense no longer being an offense; possession up to one ounce is now legal. That means those records show up on CourtView, easily accessed by prospective employers or landlords. Such background checks turning up misdemeanors can create barriers towards employment and housing, Begich told members of the Senate Judiciary Committee last Friday.
“The employment and housing issues are critical to not just my district, but throughout the state, due to homelessness issues and other issues where people really, truly find themselves unable to get into housing or to get into a job because of a single mistake that they made that, again, is not a crime today,” he said. However, it wouldn’t be deleted entirely, instead remaining available in cases where deeper background checks were necessary. “Those records would still be available for any criminal justice search; any employment check to work in the medical field, or working with kids or dependent adults. All of those areas of work would be covered in the sense that they could still look at the record in those cases.”
The proposal comes at a precarious time for Alaska’s legalization project. The Dunleavy Administration has recently come under fire from proponents of the new industry after appointing two new members to the State’s five-member Marijuana Control Board, which oversees regulations regarding the control of the cultivation, manufacture, and sale of marijuana in state. Those new appointees include Vivian Stiver, tapped to replace Brandon Emmett as vice chair. Whereas Emmett is an industry member – the current chief operating officer for Good Titrations, a founding member and former executive director of the Coalition for Responsible Cannabis Legislation, and a current member of the Alaska Marijuana Industry Association – Stiver campaigned against legalization in 2014 and has worked to outlaw retail marijuana sales in the Fairbanks North Star Borough. If both appointees are confirmed next month (the other is Lt. Chris Jaime, an Alaska Wildlife Trooper based in Soldotna), only one industry representative will remain on the board.
There has been a country-wide spike in legislation dealing with past marijuana offenses over the last five years, according to the National Conference on State Legislatures (NCSL). 15 states have codified laws similar or identical to SB8. 12 states allow for a more liberalized approach resulting in the deletion of any record that an arrest or criminal charge ever occurred (expungement). That includes California, where a ballot proposition passed in 2018 now requires the State Department of Justice to “search its state criminal history information for eligible cases from 1975 to 2016 and notify prosecutors of all eligible cases in their jurisdiction. Prosecutors across the state have one year to challenge any case they do not agree is eligible for resentencing, case dismissal or expungement.”
Rhode Island and Colorado stop short of expungement and instead now seal or make confidential records, as would SB8, meaning that they remain on the books, but can be accessed in compliance with stipulations in state law. Maryland recently passed a law reducing the waiting period for petition from 10 years to four, but still retains the requirement to undergo “parole, probation, or mandatory supervision.”
During last week’s hearing, Senate Judiciary Committee Chair Shelley Hughes (R-Palmer) referenced states with conditional waiting periods, like Maryland. “Would you be open to raising the bar to make sure that the people have been clean?” she asked. (Specifically, Hughes referenced Vermont; however, Vermont has no such requirement and even holds clinics to “provide legal advice and assistance to community members to prepare and file expungement petitions.”)
However, requiring someone convicted of a minor possession offense to be “clean” for any period of time negates the fact that marijuana use is now legal.
“It’s not against the law to use now, so it’d be difficult for me to assign a criminal penalty,” Begich responded. “I don’t think I would be open to that.”
Sen. Mike Shower (R-Wasilla) voiced concerns about using the expungement as a legal loophole if the marijuana possession offense was “plead down from a higher charge.” “Is there a way for somebody to get away with this that might have been doing something a little more than what it seems like on paper?”
“I think if there’s a prolonged history of activity, I don’t think any of it should be scrubbed,” Sen. Peter Micciche (R-Soldotna) added. “It demonstrates some judgment issues that a future employer may want to know about.” Sen. Lora Reinbold (R-Eagle River) agreed, noting a KTVA segment on marijuana use she had seen, which discussed “in how many percentage of the cases marijuana is just one thing, but it really is a gateway to so much more.”
Begich reiterated that he would be open to discussing the matter further with his colleagues “to find a way to make it work,” but again noted that in instances where other charges may have been plead down to minor possession, “the ability of the prosecutor to still get access to these records would not be impaired. They’d have access to the case file. They’d have access to all the information necessary.”
The legislation, itself, states clearly that qualified petitioners would be restricted to offenders convicted solely of possession of marijuana under one ounce, as defined under AS. 11.71.060(a)(2). Between 2007 and 2017, according to Susan Haymes of Legislative Research Services, a “ballpark” count of “cases in which defendants had one or more convictions only under the relevant statute” totaled 721. In a letter of support for the proposal, Alaska Civil Liberties Union policy director Triada Stampas described the bill as a “commonsense change that will protect privacy, and remove barriers to jobs, housing, and education. SB 8 is a good first step to vindicate privacy rights and address a legacy of racial disparity in drug crime enforcement.”
Stampas noted that Alaska Natives are “more than 1.5 times as likely to be arrested for marijuana possession, relative to their share of Alaska’s population,” and that African Americans were twice as likely.
The lone public testimony offered during Friday’s hearing came from Cathleen MacLaughlin, director of the Anchorage-based Partners Reentry Center, a nonprofit that provides reentry support for high-risk Alaskans. While the population they serve generally have an extensive criminal record and would not qualify for relief under SB8, MacLaughlin said the measure would have impacted at least one recent prospective hire.
“About three years ago, we were looking for somebody in the reentry community who was highly, highly qualified,” MacLaughlin said in support of the bill. “Ten years ago, she had a simple possession prior to going to college. That banned her from being able to be employed in this industry at that time. So, when I look at that example, it causes me to think that that’s the pocket of individuals that this particular legislation is supposed to be addressing, rather than the people in which we serve at the reentry center.”
Hughes held the bill in committee. A second hearing has not been scheduled. Judiciary is the only current committee of referral assigned the proposal. The House has yet to organize, meaning they have not divvied committee assignments and cannot deliberate legislation.