The Smart and Safe Arizona Act: How a Progressive Statute Punishes the Formerly Convicted Even in Expungement

By: Tor Hawley

On November 3, 2020 Arizona voters historically passed Prop 207 which would decriminalize marijuana in a number of meaningful ways. [1] While the statute will benefit the state budget, schools, dispensary owners, and recreational use, the statute is most progressive in its expungement offer. [2] Beginning July 12, 2021 persons previously charged with or convicted of possessing, consuming, or transporting 2.5 ounces or six plants of marijuana may petition for expungement. [3]

In Arizona, where expungement was otherwise impossible to obtain, the Smart and Safe Arizona Act promises to liberate thousands of people from the collateral consequences of the criminal legal system. [4] Additionally, the statute requires a reasonable fee for petitioners to seal and separate their record but provides an exception for indigent petitioners. [5]. Though these measures are powerfully progressive for a traditionally conservative state, they do not fully provide equitable justice.

Expungement should be automatic. Any other process promotes inequality. The petition requirement fails to protect the indigent and those citizens already faced with insurmountable collateral consequences. It requires that a formerly incarcerated, convicted, or currently incarcerated citizen hire an attorney to file a petition to the court. It is unlikely that persons facing widespread housing and employment discrimination possess sufficient funds to hire a private attorney, to navigate a court petition, or succeed in a court proceeding. Further, due to unclear expungement procedures, it is unlikely that persons convicted of eligible crimes will feel confident in petitioning as a pro se litigant (acting as one’s own attorney). Thus, unless pro bono networks and attorneys across the state provide widespread support for affected persons, it’s likely that many citizens will not earn an expungement. [**]

Further, the expungement statute fails to address those citizens who received harsher sentences due to a prior conviction of a marijuana possession. How will those persons be able to expunge their conviction? How will they afford an attorney, or does the state expect pro se litigants or nonprofit organizations to fill the gaps? Will they be entitled to a new sentencing hearing? What procedures are in place to provide relief to them? Will the second conviction be used against an expungement in determining whether “the prosecuting agency establishes by clear and convincing evidence that the petitioner is not eligible for expungement[?]” [6].

Lastly, will formerly convicted persons be notified of expungement eligibility, its civil benefits, and of the process through which to attain it? Due to the delay between the change in statute and expungement eligibility, it is unclear whether expungement opportunities will receive media attention or those eligible will be informed.

Until legal institutions begin to analyze the disparate impact of even progressive policies, communities, especially marginalized communities, will continue to receive inequitable justice. Our institutions must consider the socio-economic impact to all community members, not just those wealthy investors who will bring tax dollars to the state.

[**] If interested in a future opportunity to provide legal services, fill out this form.

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