San Francisco Leads the Way: Providing Relief Under Proposition 64
In January of 2018, the San Francisco District Attorney's Office was the first District Attorney's Office to announce that they would retroactively dismiss and seal thousands of marijuana-related offenses dating back to 1975 under Proposition 64, which legalized the possession and recreational use of marijuana for adults ages 21 years or older.
In May of 2018, the San Francisco District Attorney's Office joined Code for America in the first partnership of its kind to leverage technology and user-centered design to proactively review criminal convictions that qualify for relief under Proposition 64.
Reviewed 44 Years of Eligible Convictions
The office identified all eligible misdemeanor and felony convictions dating back to 1975.
Dismissing and Sealing Misdemeanors and Felonies¹
The San Francisco District Attorney's Office has automatically cleared 8,132 marijuana-related convictions as part of a cutting-edge criminal justice reform pilot with Code for America. This is in addition to the 1,230 marijuana-related convictions the District Attorney's Office had already expunged, bringing the total number of sealed convictions to 9,361. This makes San Francisco the first county in the country to complete the automated marijuana record clearance process.
It is the position of the Calfornia Department of Justice, District Attorney for San Francisco County that a conviction dismissed and sealed based on a finding of legal invalidity, pursuant of Health and Safety Code 11361.8(e), shall cease to exist for all purposes and shall no longer be cited as a "conviction" for any purpose. A conviction dismissed and sealed under Health and Safety Code 11361.8(e) may not be used as a basis to deny any access to any benefit, relief, program, or any application, nor may it be relied upon for the purpose of any subsequent criminal penalty. Convictions dismissed and sealed under 11361.8(e) are legally invalid.
Clear My Record Technology
Traditionally, each person seeking relief has had to petition the court on their own to clear their records, but this is a time-consuming, expensive, and confusing process. Over the course of the office's partnership with Code for America, we determined that with the aid of Clear My Record technology, a DA's office can dismiss and resentence convictions proactively, automatically, and expeditiously.
The Clear My Record technology can automatically and securely evaluate eligibility for convictions by reading and interpreting conviction data. It can evaluate eligibility for thousands of convictions in just a few minutes. This requires no action on the part of the individual, and minimal staff time and resources from a DA's office—two enormous obstacles for record clearance. Streamlining conviction data processing also makes it easier for courts to update records, ensuring people get relief as soon as possible.
This novel approach creates a blueprint for the future—the development of policy and technology that expands, streamlines, and automates the record clearance process at scale to reduce barriers to employment, housing, health, and education that millions of Americans face.
This partnership also helps to address wrongs caused by the failed War on Drugs, felt most strongly by communities of color. In San Francisco, approximately 33% of all dismissed convictions involved African American people and 27% involved Latinx people. Since 2016, Code for America has been making it easy for people to remove eligible convictions from their records through Clear My Record technology.
How Can Other DAs' Offices Get Started?
The San Francisco District Attorney’s Office took a multi-step approach.
First, we requested the San Francisco Superior Court run a list of every stand-alone marijuana misdemeanor and felony conviction for Health and Safety Code Sections 11357, 11358, and 11359. The database reflected the names, docket numbers, conviction status, level of conviction, and date of birth for every individual with a qualifying conviction since 1975, as far back as the court management system holds.
We determined, based on Prop. 64, that it was appropriate to dismiss and seal all marijuana-related misdemeanors and infractions on our own motion. In order to facilitate this process, we are utilizing a previous process established with the court under Proposition 47 in which:
- If parties stipulate to the motion, there is no need to calendar the request
- We can complete the motion and file it with the court
- The court will sign and process the motion, sending petitions for dismissal and any relevant information to state actors, without the need for any court appearance
As we took these early steps, we also began communicating with Code for America on how to automate the record-clearance process to identify and clear all of the remaining eligible cases. For more information or to access the San Francisco District Attorney's Prop 64 Tool Kit, please contact Maria McKee (firstname.lastname@example.org).
How does a person know if they are affected by the policy?
If a member of the public believes that his/her prior marijuana conviction should be dismissed or reclassified by our office, they are encouraged to contact us by phone (415-553-1751) or via email. Our office will only provide information to those who are calling about themselves. The caller will have to provide his/her name and date of birth before any information can be provided.
If the person’s name appears on the list of individuals whose prior convictions have been dismissed, they will be sent an electronic copy of dismissal documents via email if they would like.
If the person’s name does not appear on the list but they believe they are eligible for dismissal or reclassification under Prop. 64, their name, date of birth, and a court number (if applicaple) will be taken. Our office will further inquire about the person’s eligibility and take additional steps to dismiss or reclassify the individual’s conviction if appropriate.
What if a person does not want their conviction dismissed?
For those who would like to opt out of having their past conviction(s) automatically dismissed or reclassified, they should contact our office and provide their name, date of birth, and contact information. This information will be processed and the individual will be contacted when appropriate.
For individuals applying to equity programs for cannabis permits, we will make the appropriate documentation available upon request.
Consistent with Proposition 64, the office’s new policy will affect individuals who have suffered a misdemeanor 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 have 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;
What types of felony convictions can be dismissed and sealed?
Individuals may have their felony convictions dismissed and sealed 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.