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ASU Law clinic to help clean community members' records of marijuana charges

Grant funding for Post-Conviction Clinic will give law students real-world experience and benefit the community

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July 27, 2021

When Arizona voters approved Proposition 207 last fall legalizing recreational marijuana, a provision in the law allowed expungement of marijuana offenses from criminal records.

This fall, Arizona State University’s Post-Conviction Clinic in the Sandra Day O'Connor College of Law will begin assisting eligible people to expunge those convictions.

The clinic will partner with the Arizona Justice Project in evaluating cases for suitability, preparing paperwork and litigating cases if required.

The law states that anyone convicted of possession of 2.5 ounces or less is eligible. As of now, federal convictions are not eligible.

“In Arizona, there is no real expungement,” said Randal McDonald, supervising legal attorney at the clinic. “So once you have a criminal record, there's not really a way you can do anything about it. … And so this is kind of a first for Arizona in that the charges are expunged and it's as if it never happened and the state is not supposed to impose any kind of penalty on you for this. So I think if you had certain civil rights taken away as a result of this, you should automatically get those back, assuming that there are no other criminal charges that you have.”

The state set aside $4 million to be divided among a coalition of legal clinics statewide. ASU will get a little more than $320,000.

The clinic will begin meeting with people at the start of the fall semester.

“For the majority of these, we are going to hold some sort of a clinic where people show up and they say, "OK, here's my situation,” McDonald said.

If it’s a simple possession charge, the process should be straightforward.

“We help them fill out the paperwork so that they can file it on their own,” McDonald said. “I think for the majority of people, that'll be it. The state will not object. The court will do its thing. And they'll get the thing expunged.”

Diana Bowman, professor in the Sandra Day O'Connor College of Law and associate dean for applied research and engagement, said the clinic will clean up a lot of records and lives in the process.

“I think what we will see is a lot of people who have been unfairly put through the legal process — generally minorities, and those who are unfairly targeted in terms of police — are going to be probably real beneficiaries in terms of Prop 207 and the work that Randy and the clinic and others will be doing,” she said. “This is not about people who are on the street selling drugs to make a profit or people who've been trafficking at a commercial quantity. This is really about individual users who are using it for their own recreational purposes.”

However, there are gray areas. The amount allowed to be expunged is 2.5 ounces (or six plants at your place of residence). But lawyers have found that often historical convictions don’t state the number of ounces. Files only say the conviction is for marijuana under 1 pound.

“There may be some of these that the amount is unclear or contested,” McDonald said.

What if you were caught with 2 pounds and pled to possession of under 1 pound? What amount did you plea to?

Some convictions now expungeable have been used as historical priors to enhance sentences for other crimes. Say someone has a marijuana offense and then commits a robbery. Because of the marijuana offense, their robbery sentence is enhanced.

“One question that we'll want to eventually answer is whether those people can apply to have their sentences reduced as a result of these expungements,” he said. “So I think there's going to be a lot of issues that we just don't even know about.”

When the new law passed, the Maricopa County attorney’s office searched their records for the past five years for people with convictions that could be expunged. They came up with a list of 7,000 names — just in Maricopa County. Each may end up posing its own sort of unique set of circumstances.

“I think the state by and large will not be opposing these petitions, but I imagine there will be some number of them that they will oppose and we'll have to deal with those as they come up,” McDonald said.

“For those that have additional issues, we, or one of the other clinics, or one of the other legal aid offices will step in and represent those folks,” he said. “One of the benefits of doing it at our clinic is that we have we'll have 10 law students who can appear on behalf of these folks in court who can help them out.”

This type of work is excellent for the Post-Conviction Clinic because it will provide students with real-world experience preparing and filing petitions, appearing in court, reviewing case files and interviewing and advising clients.

“One of the things that the ASU Law school prides itself on is giving our students real-world experience and actually making a difference in the community,” Bowman said. “And so this grant opportunity and the work that Randy and the team will be able to do really speaks to the ASU Charter in terms of providing assistance to our community through what we do in our various programs. But it also allows our students to meet with a whole range of community members that they might not otherwise get to engage with. And we do know that real-world legal experience in law school definitely assists in terms of not only the graduation process, but getting great jobs once you actually are out of law school.”

ASU Law students do more than 100,000 hours of pro bono work each year, according to Bowman.

“We are very passionate about actually providing legal services to our community and we do so at scale each and every year,” she said.

The Post-Conviction Clinic does not accept outside referrals or direct inquiries for services. If you believe you have a valid post-conviction claim, please contact the Arizona Justice Project at 602-496-0286 or for referral to the ASU clinic or another clinic that can assist you.

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