What Marijuana Legalization Would Mean for Criminal Justice in Arizona

Marijuana legalization is headed to the ballot in Arizona this November. If successful, the state would become the 12th US state to legalize marijuana. The initiative is already subject of a lawsuit from anti-legalization groups and scorn from politicians, including Governor Doug Ducey (R). If passed, the legalization effort could significantly reduce arrests in a state with some of the harshest marijuana penalties in the nation and a heavily burdened prison system.

Despite its draconian laws for non-medical use, Arizona passed medical marijuana back in 2010. It now has has over 250,000 registered medical patients or caregivers and 131 dispensaries. The last time Arizona voted on full legalization, in November 2016, it narrowly lost, with about 49 percent support. 

How Arizona Legalization Would Work

The legalization initiative, called Prop 207 or the Smart and Safe Arizona Act, officially qualified for the general election ballot on August 10. If approved by a majority of voters, it would legalize up to one ounce of cannabis for over-21s. Adults could also cultivate six marijuana plants at home.

Prop 207 would also allow people with prior convictions for marijuana possession to petition the courts for expungement. Presumably, this process would not be automatic, as it is meant to be in states like California.

In Arizona’s legal market, a 16 percent excise tax on cannabis sales would cover the costs of implementing regulations. Excess tax revenue would then go to community colleges, public roads and infrastructure, police and firefighters, and certain social justice initiatives. The latter would include a social equity program to help people with past criminal records for marijuana get business licenses in the new industry.

But the proposal does put some major limitations on where new cannabis dispensaries can open. First, the total number of dispensaries would be limited to one-tenth the number of drug pharmacies licensed in the state. Then, each county can only have two recreational dispensaries if it doesn’t have any medical dispensaries; or one recreational if it has one medical. These rules mean there would be more medical than recreational dispensaries in the state.

And who gets to operate the new recreational dispensaries? According to Leafly, the state would issue about 160 new recreational licenses, with most allocated to existing medical dispensary owners. Twenty-six licenses would be reserved for social equity applicants, and a handful would cover very small rural counties without any dispensaries.

The text says that medical dispensary owners and the rural applicants would get early priority in getting these licenses, and the rules seem to privilege those already running established businesses in the state.

Opposition and Current Enforcement

Anti-legalization politicians and groups have come out in loud opposition to Prop 207. Gov. Ducey has dismissed the effort as “a bad idea based on false promises,” and other elected officials like State Senator Sine Kerr (R) and Yavapai County Attorney Sheila Polk have joined the onslaught.

Political group Arizonans for Health and Public Safety even filed a lawsuit to try to stop the initiative being printed on the ballot. They alleged that the 100-word summary provided to voters by the campaign was misleading about what the new law would actually do. But on August 20, the state’s Supreme Court unanimously ruled that the summary was compliant and that Prop 207 could stay on the ballot.

The change it could bring about would be dramatic. Today, possession of under two pounds of marijuana in Arizona is a class 6 felony, punishable by at least four months in prison and a maximum $150,000 fine. This makes Arizona the only US state where the smallest possession quantity of marijuana is charged as a felony. 

Enforcement in practice can be complex, however. Because of a law, Proposition 200, passed in 1996, no one can be sent to prison for a first-time, nonviolent drug charge. The charge can be pleaded down to a misdemeanor or wiped off the criminal record if the defendant completes a pretrial diversion program including drug tests and “substance abuse” classes. Prosecutors can also use discretion for someone’s first several drug arrests before seeking prison time. On the other hand, the statute of limitations for such charges means people can be charged up to seven years after their arrest.

“Honestly, this is enforced differently depending on who you are,” said Maya Tatum, Students for Sensible Drug Policy board secretary and student at Arizona State University. “I have Black and Brown friends who have been caught with low amounts of marijuana, that were arrested, booked into jail and then had to do [the drug diversion program]. Whereas, I do have some white friends that have been caught and let off with a warning. Of course, it’s not that black-and-white but that has been my experience.”

Statistics show that marijuana prohibition has indeed had a racist impact in Arizona, as elsewhere. An ACLU analysis this year showed that Black Arizona residents are almost three times more likely to be arrested for marijuana than whites.  

Charges can also become more serious, Tatum explained, when police find paraphernalia or weighing scales that they can claim are evidence of drug selling or distribution.

In 2018, marijuana possession arrests were nearly half (43 percent) of all Arizona’s drug arrests. These arrests have helped drive a rapide increase in Arizona’s jail populations. They may also be helping to grow its prison population, either directly because of marijuana charges, or because of technical and status violations that people may make after being arrested—like missing trial.

That said, it’s not clear how much marijuana legalization would reduce the state’s prison population. Overall, Arizona has the fourth largest incarcerated population in the nation. It locks up 877 per 100,000 residents, higher than the national rate. Black, Latinx and Native American people are all disproportionately incarcerated.

Of course, even without imprisonment, marijuana charges can have devastating effects on people’s housing, employment or education opportunities. Tatum recounted the story of one of her school peers, Andre: “Without going into too much detail, she almost lost her education due to being caught with marijuana on campus,” she said. “Even though she was and is a medical marijuana patient in the state of Arizona. As a result of this, she was at risk of expulsion from ASU. She was able to go to trial and beat this case, which resulted in her being able to graduate from ASU.”

Tatum herself is somewhat conflicted about Prop 207. “I want so badly for folks to stop being arrested for simple marijuana possession,” she said. “Prop 207 solves the obvious problem of folks being arrested for marijuana, but I am concerned with the ways in which marijuana will be regulated, who sits at those tables, and how the revenue will be allocated.”

She also criticized the fact that only 10 percent of cannabis tax revenues would go towards a “justice reinvestment fund” to help reverse the social harms of the War on Drugs, while more than triple that would go to police and firefighters.

Filter has reported on this same problem in Arizona’s neighbor, California: Four years after legalization, cannabis tax revenues are funding more policing while Black and Brown marijuana arrest rates are increasing in some cities and towns. And in a state that promises to “automatically” remove people’s marijuana records, some counties are waiting years for that to be fulfilled.

The result is that marijuana legalization—which was supposed to be a fix for racist marijuana arrests and over-policing—is instead fueling a new era of policing and arrests. That’s why many activists, like Tatum, worry that initiatives like Prop 207 don’t go far enough.

“I just think yet again, we the people are getting crumbs and having to be happy about it!” Tatum said. “For me, I am still waiting for a proposition that reflects the people—one that sets out to truly undo the harms of marijuana prohibition through restorative justice legalization.”