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SAN JOSE — Santa Clara County plans to expunge 13,000 minor marijuana convictions that were rendered moot by the state’s 2016 legalization of recreational pot use and sales, two months before a deadline set by the landmark law.
“I’m very happy to be able to sign that order today,” Superior Court Judge Eric Geffon said at the Hall of Justice on Wednesday.
But in the South Bay, it’s not just a criminal-justice or drug policy story. Keeping in line with the region’s technological lineage, the District Attorney’s Office also made it a coding story.
That’s because with Geffon’s signature, prosecutors will automate the clearance of those conviction records from local, regional and federal law-enforcement databases with software created in-house by the DA’s technology staff.
That final touch is a Silicon Valley original, officials say. What it means for those getting the legal relief — about 9,000 individual people are represented by the qualifying cases — is that there will be little latency between when their convictions are nullified and when that data is erased from wider records readily accessible by police.
“Even the judge signing that order doesn’t by itself clear the record with the local, state and national databases,” District Attorney Jeff Rosen said. “You have to write software, and have that uploaded simultaneously to all these databases.”
While people with qualifying convictions have had the option to petition for expungement under Proposition 64, the pot legalization law, that required a level of time, energy and know-how that criminal-justice reform advocates said served as an unfair barrier and burden.
“A lot of people don’t even know they were entitled to relief,” said Edith Kinney, an assistant professor of Justice studies at San Jose State University who specializes in human rights policy. “People were still being penalized. It was racially disproportionate, continuing punishment long after it’s been served.”
The county Public Defender’s Office affirmed that the frequency of petitions filed under Proposition 64 was modest at best, and cited one conviction that was from 50 years ago.
“Those criminal convictions were still haunting them,” Deputy Public Defender Daniel Portman said in court Wednesday. “The process of doing this case by case was going to take decades. … Today our legal system has taken that last step to ensure that relief has been granted.”
Rosen said his staff has been testing small batches of cases to make sure the coding works as intended, and he said that the tests have ironed any glitches that could delay the process.
It might seem like a minor technical detail, but supporters of the conviction clearances, which include Rosen himself, say if the purpose is to ensure the records don’t show up when someone is say, pulled over for a traffic stop, or is undergoing an employment background check, then those technical details are the entire point.
“These are logistical issues that were, in a very real way, standing in the way of any and all of these record clearance efforts,” said William Armaline, an associate professor of sociology and acting director of the Human Rights Institute at San Jose State. “It’s basic-level fairness. You cannot have people out there making millions of dollars in a newly legal industry while you still have people sitting in a cage for doing the same thing.”
Armaline’s group, buoyed by his students, has been working for two years to maintain attention on the expungement issue, as well as pressure on prosecutors to follow through.
When voters passed Proposition 64 in 2016, the new law compelled that by this July, any convictions related to many minor pot possession and sales crimes be stricken absent other crimes or mitigating circumstances. A corresponding bill authored in 2018 by Alameda-based state Assemblyman Rob Bonta compelled the California Department of Justice to produce, by July 2019, lists by county of people eligible to have their marijuana convictions expunged.
That contributed to confusion about varying expungement timelines, even within the same progressive Bay Area region. In February 2019, then-San Francisco District Attorney George Gascón announced that by partnering with Code For America, a nonprofit that pioneered software to mine court records and identify convictions eligible for clearance, more than 9,000 marijuana-related convictions were expunged, about 8,100 of them through the software.
But Rosen’s office and other counties, many of which were not selected for the Code For America pilot, chose to wait for the state DOJ lists to avoid duplicating work already being done. But when the lists arrived, they were incomplete, or included current county residents whose pot convictions happened out of the area and thus weren’t eligible for local clearance, prosecutors said.
The stakes cannot be understated, said Theshia Naidoo, a managing director for the national Drug Policy Alliance.
“Low level drug convictions can have devastating impacts — preventing people from getting a job, shutting the door on higher education, and tearing families apart,” Naidoo said. “It is heartening to see criminal justice system partners come together to undo some of that damage and improve thousands of peoples’ lives.”
Rosen echoed the sentiment.
“We hold people accountable,” Rosen said. “But when they’ve served their sentences and completed probation, and are ready to enter civil society, I want to help them and make that happen as quickly and easy as possible.”
He added that he hopes the new software can be utilized in the future to speed up the clearance of other kinds of convictions that have qualified for expungement.
“We spent a lot of time and resources to build this system, and now that we’ve used it for marijuana expungement and it works, we know we can use it for other cases in the future,” Rosen said. “Like when someone completes probation, that update can happen seamlessly.”
On that front, Armaline said, there is no time to waste.
“This is a first, easy step,” he said of the marijuana amnesty. “You can build from here, and we can expand that work together.”