District Attorney George Gascón Applies Proposition 64 Retroactively to Every Marijuana Case Since 1975


News from the Office of District Attorney George Gascón



January 31, 2018

Twitter: @GeorgeGascon

CONTACT:     ALEX BASTIAN (415) 553-1931     |    MAX SZABO (415) 553-9089




SAN FRANCISCO – Today, District Attorney George Gascón announced that the San Francisco District Attorney’s Office will be retroactively applying Proposition 64, which legalized the possession and recreational use of marijuana for adults ages 21 years or older, to misdemeanor and felony convictions dating back to 1975.  Although the initiative, which reduced criminal penalties for marijuana offenses after its passage in November 2016, provides reduction or dismissal upon a petition filed by a convicted individual, the San Francisco District Attorney’s Office will be reviewing, recalling and resentencing up to 4,940 felony marijuana convictions and dismissing and sealing 3,038 misdemeanors which were sentenced prior to the initiative’s passage.  This will not require any action be taken by those who are eligible pursuant to Proposition 64.


“While drug policy on the federal level is going backwards, San Francisco is once again taking the lead to undo the damage that this country’s disastrous, failed drug war has had on our nation and on communities of color in particular,” said District Attorney George Gascón. “Long ago we lost our ability to distinguish the dangerous from the nuisance, and it has broken our pocket books, the fabric of our communities, and we are no safer for it.  While this relief is already available pursuant to Proposition 64 for anyone with a conviction, it requires that they know it is available and to retain an attorney to file the expungement paperwork.  A criminal conviction can be a barrier to employment, housing and other benefits, so instead of waiting for the community to take action, we’re taking action for the community.”


“This example, one of many across our state, underscores the true promise of Proposition 64 – providing new hope and opportunities to Californians, primarily people of color, whose lives were long ago derailed by a costly, broken and racially discriminatory system of marijuana criminalization,” said Lieutenant Governor Gavin Newsom.  “This isn’t just an urgent issue of social justice here in California – it’s a model for the rest of the nation.”  


In California, it’s estimated that between 1915 and 2016, California law enforcement made 2,756,778 cannabis arrests.  While Proposition 64 allows for those convicted of marijuana crimes to petition to have their convictions reduced or wiped away, according to the Drug Policy Alliance, only 4,885 Californians have petitioned state courts to have their cannabis convictions expunged since the initiative’s passage.  With the Department of Elections reporting that nearly 75% of San Franciscans voted to legalize marijuana, nearly three out of every four San Franciscans voted to provide this relief to those convicted of marijuana offenses. 


Reducing the disparities in San Francisco’s criminal justice system has been a priority for the District Attorney.  As indicated by the disparities in San Francisco arrest and booking rates, the War on Drugs has produced disparate arrest rates across racial groups.  This is despite the fact that multiple studies have found that rates of drug use and drug sales are commensurate across racial lines.  In particular, African American and Latino communities interact with the criminal justice system, including via arrests, bookings, and incarceration, at a rate far higher than their Caucasian counterparts. 


City and County of San Francisco, Cannabis Equity Report, citing SFSO Data 1990-2016


Source: City and County of San Francisco, Cannabis Equity Report, citing SFSO Data 1990-2016


According to the city’s Cannabis Equity Report, the jump in total cannabis arrests in 2000 was accompanied by a jump in the disproportionality of African American arrests. Arrests increased by 160% between 1999 and 2000, from 1,164 to 3,042. The percent of arrests featuring African American went up from 34% to 41% of all arrests, a 20% increase. Despite the high percentage of African American cannabis arrests, Black San Franciscans comprised just 7.8% of San Francisco’s population in 2000. Even as the number of total arrests drastically fell around 2011, after the downgrading of misdemeanor cannabis possession to an infraction, African American cannabis arrests as a percentage of total arrests hovered around 50%. According to census data, African Americans represented just 6% of San Francisco’s population in 2010.


Consistent with Proposition 64, the San Francisco District Attorney’s Office new policy will affect individuals who had suffered a conviction for:

  • Possession of 28.5 grams or less of Marijuana pursuant to Health and Safety Code Section 11357; or
  • Possession of 8 grams or less of Concentrated Cannabis pursuant to Health and Safety Code Section 11357, when he/she was 21 years or older, may have their record of conviction dismissed.


And individuals who had suffered a felony conviction for:


  • Possession with Intent to Sell Marijuana pursuant to Health and Safety Code Section 11359;
  • Sales, Furnishing or Transportation of Marijuana pursuant to Health and Safety Code Section 11360; or
  • Cultivation of More than 6 Marijuana Plants pursuant to Health and Safety Code Section 11358;


may have their felony reclassified as a misdemeanor if:


1)     He/she has not suffered a conviction pursuant to Penal Code Section 667(e)(2)(c)(4);

2)   He/she is not required to register as a sex offender pursuant to Penal Code Section 290;

3)   He/she does not have two or more prior convictions under the same Health and Safety Code Sections of 11358, 1139, or 11360;

4)   The conviction did not involve the sale or attempted sale to a person under the age of 18;

5)    The conviction did not involve a person under the age of 21 in possessing for sale, selling or cultivating marijuana; and,

6)   The conviction did not involve the importation or exportation over state lines of more than 28.5 grams of marijuana.


Health and Safety Code Section 11361.8 creates a presumption that a person applying for a dismissal, resentencing or redesignation to a misdemeanor has satisfied the criteria for dismissal, resentencing or redesignation unless the party opposing the application proves otherwise by clear and convincing evidence.  The application may be granted without a hearing.  If the person applying for resentencing or dismissal is currently serving their sentence, the court shall grant the petition unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.