View attachment 46160
PORTLAND, Ore. — About 15 years ago, when she was in her 20s, Erika Walton handed a bong to someone who turned out be a police officer, and was cited for marijuana possession. She paid the fine, she said, but the violation lingered on, haunting her record.
On a recent afternoon, Ms. Walton was at a free legal clinic here in Oregon’s largest city, filling out paperwork to have that infraction forever sealed. Once the process is complete, she will be able to legally say to an employer, landlord or anybody else who asks that she has never been convicted or cited for any drug crime at all.
“It’s taken away a lot of my life,” Ms. Walton said as she inked out her fingerprints, which Oregon requires applicants for sealing to file.
The mark on her record was minor — a citation for possession under Oregon law, even back then, was below the level of a misdemeanor, roughly equivalent to riding the light rail without a ticket. But it still cost her, she said, when she had to divulge it on applications for jobs and volunteer positions at her children’s school.
“That’s why this means so much to me today,” she added.
Oregon was not the first state to legalize recreational marijuana, which happened through a state ballot vote last November, nor is it the largest. But in preparing to begin retail marijuana sales next month, it is nonetheless blazing a profoundly new trail, legal experts and marijuana business people said.
“Oregon is one of the first states to really grapple with the issue of what do you do with a record of something that used to be a crime and no longer is,” said Jenny M. Roberts, a professor of law at American University in Washington, D.C., who specializes in criminal law and sentencing.
Many states in the past few years have begun to rethink the implications of harsh drug or mandatory sentencing laws that led to high incarceration rates and costs, revising rules so people who have righted their lives can escape the stigma of a criminal record.
Ms. Walton used a state law, not restricted to drug offenses, that allows anyone with a lowest-level felony, misdemeanor or nontraffic violation to wipe the slate clean if 10 years or longer has gone by without another conviction. Starting next year, more serious felony marijuana convictions of the past, like manufacturing, will be eligible for record sealing as well.
Oregon’s idiosyncratic drug law history partly explains its trajectory. The state was the first, in 1973, to decriminalize possession of small amounts of marijuana. That began an arc of legal experimentation that continued this year, with two new laws passed by the Legislature making it easier for people like Ms. Walton to reach back and reset the clock.
One new law specifically says courts must use the standards of current law — under which possessing, growing and selling marijuana are all legal — in considering records-clearing applications. The other allows faster record-clearing for people who were under 21 at the time of a past conviction.
“In criminal law reform on marijuana, Oregon has gone further than anyone else,” said Leland R. Berger, who specializes in marijuana law and practices in Portland.
But the differences in Oregon’s way of handling marijuana go far beyond criminal law.
The state’s recreational marijuana taxes paid by consumers will be among the lowest in the nation. Across the border, Washington tacks on a 37 percent tax, compared with 17 percent in Oregon and a 3 percent local, optional add-on.
That raises the possibility here in the Northwest, at least, of a border war, if marijuana consumers start crossing into Oregon for lower prices. (They already do for many other purchases, since Oregon has no regular state sales tax, either.) But Oregon officials say their main motive in tax policy is to better compete with the still-illegal unregulated market at home, offering prices closer to what people are used to but with products and producers now inspected and monitored.
Oregon also rejected ideas tried in Washington and Colorado about how to monitor and license new industry participants. Washington, for example, created a set number of licenses and held a lottery to distribute them; Oregon is setting no limits on how many businesses can enter the industry. Likewise, Oregon has no barriers to so-called vertical integration ownership, in which one company can control the product from growth to sale, a practice Washington also restricts.
In Washington and Colorado, the police must administer blood tests on drivers suspected of marijuana impairment. To avoid such a tricky and cumbersome system, Oregon legislators adopted a more open-ended standard approved by voters, which lets an officer use his or her judgment as to whether a person is too high to drive.
Clearing a record of past convictions, even in states where recreational marijuana has been legalized, remains controversial. In Colorado, prosecutors have wide latitude to oppose such applications and often do, especially in cases in which a person faced more serious felony charges, like drug manufacturing, but pleaded guilty to a lesser offense like simple possession.
“There’s a tension between what the bare record of a case would show and what the police or prosecutors believed could have been proven,” said Sam Kamin, a professor of criminal law and procedure at the University of Denver.
Regulators here, in positioning the state for the legal marijuana trade, said Oregon was also starkly different from the first wave of marijuana states in already having a huge agricultural crop of marijuana, much of it near the California border, that grew up to feed the illegal national drug market. Oregon is also the fifth-largest wine-producing state, with the third highest number of wineries.
In legal terms, they said, wine and marijuana are now not so different. And both are based in rural corners of the state that need economic development.
“Oregon is lucky in its position and timing, to able to see what was and was not working,” said William Simpson, the owner and president of Chalice Farms, a medical marijuana company that is poised to enter Oregon’s recreational market.
The company opened a store this summer in Oregon’s pinot noir belt south of Portland — aiming to make the place feel more like a wine-tasting room than a place to pick up a pipe and an ounce. Mr. Simpson said he saw a kind of horticultural continuum between wine workers tending vines nearby and employees like Ola Jones, who weighs marijuana plants and their components at the new shop.
As other states, from Ohio to California, look toward legalization votes next year, national marijuana experts said the legal questions that Oregon was wrestling with would increasingly be part of the discussion.
And people like Ms. Walton, who worked with Metropolitan Public Defender Services, a private nonprofit law firm, in filing her record-sealing paperwork, are at the front lines.
“What was on her record ended up hurting her even though it had been decriminalized,” said Alex Bassos, Metropolitan Public Defender’s director of training and outreach, who leads a weekly “expungement clinic” in the firm’s Portland office. “Now it’s legal, and the same actions wouldn’t be stigmatized at all.”
By KIRK JOHNSON
SEPT. 20, 2015