AB 1793 and cannabis conviction relief via automatic record clearance

California is on the verge of making history as one of the first states to successfully implement a policy that would automatically clear hundreds of thousands of eligible cannabis convictions.

In California and around the country, automatic record clearance policies intend to fundamentally change the status quo of record clearance — a positive shift in the way government delivers services, versus continuing on a path in which the criminal legal system leaves nine out of 10 eligible people behind because of the administrative burden of the petition-based record clearance process. Automatic record clearance is a reparative service that the government can and should offer to people living with eligible convictions, and it is a way to build back trust in a government system that has a long legacy of harming communities.

Passed in 2018, Assembly Bill 1793 is intended to close the unconscionable gap between the number of people eligible for cannabis conviction relief under Proposition 64 and those who managed to receive it through the existing petition-based process. But, while we are hopeful this new policy will bring relief to hundreds of thousands, the work is not complete — we now need to ensure the law is implemented fully and promptly by our state’s courts and criminal history repository who must update their records to reflect relief. Not only does this policy work to remove lifelong barriers imposed by criminal records in California, it will also serve as a proof point across the nation that automatic record clearance is the only equitable path forward for record clearance.

This automatic record clearance law embodies a new, more just approach in which government initiates and completes the process for reducing, dismissing, and sealing eligible criminal records rather than those with criminal records petitioning the court individually — a process that is costly, confusing, and not set up for eligible people to succeed. This new approach ensures that old criminal records are no longer barriers to living wage jobs, stable housing, and community wellbeing. The implications for automatic record clearance are monumental for people and government alike — but only when the law is implemented completely and done so within a clear and reasonable timeline. Despite five years passing since voters approved Prop. 64 — and three years passing since AB 1793 — recent reporting has uncovered that very few eligible records have operationally received relief at the local and state level.

So what happened? And more importantly, what still needs to be done?

AB 1793 mandated that by July 1, 2019, the California Department of Justice needed to identify cannabis-related convictions eligible for relief, and send a list of those convictions to local district attorneys’ offices. The DAs would then review and submit the unchallenged convictions to the courts by July 1, 2020, so that the superior courts could order the relief granted, update the corresponding court records, and notify the California Department of Justice to update the state criminal record repository and make corresponding updates.

Although the vast majority of DAs met the July 1, 2020 deadline, there was no such deadline for courts, and it appears that many have not taken the required steps to fully implement the law by promptly updating their records to reflect the relief that has been granted. Until they act, cannabis convictions will continue to appear in the government data sources that background check companies rely on — preventing people, (disproportionately Black and Brown communities), from getting living wage jobs, obtaining decent housing, pursuing educational opportunities, and engaging in family life activities. All of these barriers add up to what some advocates are calling post-conviction poverty — the experiences of ongoing economic immobility.

When AB 1793 was passed, we at Code for America had already been pioneering an algorithm in partnership with five district attorneys’ offices that allowed them to proactively identify Prop. 64-eligible convictions for the purpose of filing bulk motions to reduce, dismiss, and seal them. To assist DAs in meeting the new law’s July 2020 deadline, we expanded the algorithm into an open-source software and made it available statewide — free of charge. Of the approximately 220,000 eligible convictions identified by the DOJ, we estimate that the software helped DAs submit motions to reduce, dismiss, or seal roughly 144,000 of them — i.e. two-thirds of the eligible convictions.

This impact shows how important and powerful the automatic approach to record clearance can be if implemented fully. Based on data collected by the California courts, we estimate that only a fraction of eligible people were able to receive record relief through the process that Prop. 64 established, from the time it was passed to the summer of 2019. The state-initiated, automatic approach provides the opportunity to close that delivery gap.

Automatic record clearance policies equitably distribute the benefits of record clearance. Getting relief through the petition-based process requires time, money, expertise, and the ability to navigate complex legal processes or to find and afford legal aid for assistance. Many types of convictions are eligible, but if there are so many barriers, does that eligibility really matter? The automatic approach to record clearance means that everyone who is eligible will benefit, not just those who are fortunate enough to be in a position to navigate the system.

Momentum is growing for automatic record clearance — policymakers and advocates across the country have passed numerous automatic record clearance laws in the past few years, including Connecticut, Delaware, Utah and Michigan, among others.

All of us can still help to fulfill the promise of AB 1793, and change the status quo — it’s not too late. We need to advocate that courts prioritize the clearing of these records, and ensure they are promptly provided the resources they need to do so. We should also understand that AB 1793 is part of a larger nationwide movement for automatic record clearance. By advocating for these policies across the country — and their complete implementation — we can work to transform our legal system, repair past harms, and support thriving communities.