#Decline2Sign Arizona’s Ballot Initiative Entitled Smart and Safe Arizona Act.
My goal is that if you read this and the supporting documentation you will be able to talk credibly about the many failures of this ballot measure. It is important because this citizen initiative will continue to lock black people out of the legal cannabis industry and lock them up for trying to participate. I am an Arizona-licensed attorney, but this is not legal advice and should not be constructed as forming an attorney-client relationship. I want us all to be better informed about the issues that shape our lives. Also, if you want to stay informed or join us click here.
First, we are in favor of the decriminalization or legalization or both of cannabis. Too many people have been arrested or convicted for the mere possession of personal consumption amounts of marijuana. A black person is four times more likely to get arrested for marijuana than a white person (click here, and here, and here to see the articles that support this assertion). Even though white people consume cannabis at higher rates, if not the same, as blacks (click here). It is with regret, that our position has not changed on this ballot measure.
There are considerable improvements to this ballot measure, from its first version. Yet, at its core this is just a shameless grab by greedy dispensary owners who are using this ballot measure to create a monopoly of the legal marijuana industry and lock-out black people from participating in any meaningful or certain manner. This ballot measure will limit the number of licenses to sale cannabis to around 170 in comparison Colorado, who has two million less people than Arizona, has over 580 licenses to sale recreational cannabis.
In no uncertain words: this is not a good first-step. This is using the law to create an asset that will create generational wealth for decades for rich white families, when there is a path that could allow all races and economic backgrounds to prosper in this once in a lifetime opportunity. In order to increase the number of licenses to sale recreational cannabis it will require 75% of the Arizona legislature approving the measure and the Governor signing the measure. However, I don’t think that would be allowed under our state’s constitution, because these greedy Arizona dispensary owners have excluded the amount of licenses from the voter protection section of the ballot measure.
Even if you could amend the number of licensees via our lawmakers, that would be very difficult in this polarized political environment, and the dispensary owners know this. That is why they did not include the number of licenses in the voter-protection section of the ballot measure on page 16 section 7. The voter-protection section are the things that the dispensary owners will allow the legislature to change. Accordingly, the one thing they do not want our elected lawmakers to change is the number of people who are allowed to sale weed in Arizona.
We are also against this ballot measure, because it continues to use an out-dated expungement model that has proven not to work in California and Colorado. Instead of using a method like Illinois that automatically expunged all convictions between 0 grams and 200 grams (Click here). In fact, this expungement model proposed by the ballot measure might be the worse version in the United States, because it places too much burden on the person trying to have this scarlet mark removed from their license. Too many times in America’s history there has been a law on the books, but working-class people, and specifically black people, have not been able to access the protections or rights that were guaranteed by this law. For example, voting. The 15th Amendment and the 19th Amendment granted the right for black people to vote, but it was not until the 1965 Voting Rights Act make this a reality for the majority of black people. Another, example is “Stand Your Ground Laws” not once in our country’s history has a black person been able to successfully use this as a defense, Marrisa Alexander got sentenced to 20 years in prison for firing a warning shot to scare off an attacker in her own home. Click here. This expungement model is the same: it says it will do something in theory, but in reality it will not do a damn thing to improve the lives of black people and those with cannabis convictions.
This ballot measure fails to create a state report that tracks arrests and convictions for adults over 21-years of age and those under, with a special section for students like the one Colorado has created (Click here). That way activist, attorneys, and those who are concerned about cannabis use can have easy access to all of the data to make informed policy decisions.
This ballot measure ignores the people who bore the brunt of these drug laws, by not specifically setting aside licenses for people who were convicted of possession crimes and their statutory heirs. This would be a way to redress some of the harm that these laws have inflicted on family units.
For these reasons and more Arizona Black Voter Initiative is maintaining our position of #Decline2Sign and are in opposition.
Author of This Report:
My name is Garrick A. McFadden, Esq. I am a Phoenix personal injury lawyer in my day job. I am a licensed attorney in both the states of Arizona and California. I earned my Juris Doctorate from the University of Southern California Gould School of law. I also have a Masters in Business Taxation from the University of Southern California Marshall School of Business. I currently am the executive director of the Arizona Black Voter Initiative along with Micheal Ingram.
I have read both version of the Smart and Safe Arizona Act, this is an effort to “legalize” cannabis in the the state of Arizona. The purpose of this document is to provide analysis and a framework to see this ballot measure and understand how dangerous it will be and how it fails to be both: smart and safe.
Some will argue that by not doing this right now, we will continue to lock people up in jail. Yet, I have bailed someone out of jail for a marijuana arrest who was neither friend nor family member. I moved them into my home. On 1 October 2019 I kept him from going to prison for missing a random drug test, by giving an account to the Court of the good this man has done and will do. Instead of prison he got two months in jail (even though he has not history of drug abuse and has a weed card) for missing a drug test.
I am proximate to the War on Drugs. I have seen its wreckage, I lived with armed probation officers entering and searching my home at various hours of the night and early morning checking on this young man. Even with this lived experience, I know that this ballot initiative fails the black community and I cannot see how it benefits any other people of color. Nor does it do anything to substantively repair and redress the harm inflicted to white people who were snared in the dragnet of the War on Drugs. We can do better and we must do better.
Background On Ballot Initiative Measures:
In 1912 initiative measures or ballot measures were enshrined in the Arizona Constitution. It is located in Article 4 section 1. The Governor and the Legislature do not have the ability to veto or repeal an initiative that was approved by the voters. See section (6)(A) and (B) respectively. The Legislature can only amend an initiative if it furthers the purposes of such measure and at least three-fourths of the members of each house of the legislature vote to amend. See (6)C.
The first initiative that went before the Arizona voters was allowing women the right to vote in 1912 and passed. Too learn more click here.
Why Cannabis Arrests And Convictions Are So Devastating.
An Arizona reporter once quipped on a Podcast that getting a cannabis conviction expunged might not be a big deal if you have an armed robbery conviction as well. Yet, he is wrong. If you have been convicted of a drug crime you are barred from receiving SNAP in Arizona unless you meet the criteria of ARS 46–219. In three states you are permanently banned for getting SNAP benefits for a drug conviction (click here).
If you have been convicted of a drug crime your ability to obtain Federal financial aid is compromised. Click here or see below.
If a child is arrested for cannabis the family can be evicted from their home if they are receiving Federal housing assistance. Marijuana is still an illegal narcotic pursuant to federal law, using cannabis is enough to deny people housing via the rules of Section 8. See 24 CFR Section 960.204. Also, see Department of Housing and Urban Development v. Rucker, 535 US 125 (2002) under federal law, public housing tenants can be evicted regardless of whether they had knowledge of or participated in alleged criminal activity (See The New Jim Crow: Mass Incarceration in the Age of Colorblindness page 147). Again a child can be using cannabis, without the knowledge of their parents and the whole family can be evicted.
With This Background Let Me Explain Why Smart and Safe Arizona Act Is Not Smart and Does Not Make Us Safer.
This ballot initiative is not smart, because it fails to create a viable method to expunge people’s marijuana convictions. It makes a person come back before the court, on their own dime, fill out the papers and avail themselves to the same legal system that altered their lives, for doing something that many Americans have done with no legal consequences. Three of the last four American Presidents have admitted to using cannabis.
First, in Arizona if you have one quarter of a gram of pot or two pounds it is treated as the same felony under ARS 13–3405(b)(1). As a direct result of that if someone was convicted with anything less than two pounds it is all lumped together. Meaning, that the person convicted or arrested for a cannabis possession crime might not have the ability to prove to the court that they were convicted of having less than two and one half ounces (See the ballot measure starting at page 12 section 36–2862(A)(1). Due to the ambiguous nature of how this was written the expungement could be thrown-out, because the person seeking to have their conviction expunged cannot meet their prima facia case (which is fancy lawyer speak for saying that you cannot prove to the Court that you had less than two-and-one-half-ounces of weed, which is your burden to prove). That is why the ballot measure allows the Court to hold a hearing if there are genuine disputes of fact regarding whether the petition should be granted. See ballot measure at page 13 at 36–2862(B)(2)(b). Further, the prosecutor burden of evidence is lower to keep someone from having their record expunged than it is to convict them.
In our criminal justice system there are three burdens of proof used in our courts to permanently deny someone of their property or liberty: preponderance of the evidence, clear and convincing evidence and beyond a reasonable doubt. See here. In most civil cases, except for fraud or RICO, you have to use the preponderance of evidence standard. That means you win if you can get to 50.01 vs. 49.99. Clear and convincing evidence is used for fraud in civil cases and requires about a 75% belief that the person committed the wrong in order to prevail. Finally, in criminal cases we have beyond a reasonable doubt, and that means that you are about 92% sure the person committed the crime. So the prosecutor just has to establish that it is more certain than not that you actually had more than 2.5 ounces of weed, because it was the police departments policy to not arrest people with small amounts of weed or it was the prosecutor’s policy to not charge people with anything less than half-a-pound of marijuana. That is all that would be needed, in theory, for the prosecutor’s office to stop the expungement. Moreover, because the person petitioning for an expungement most likely have no evidence of how much weed they were convicted of possessing, they are not likely to get their record expunged. So this expungement is an illusion, it is a fantasy and it will not improve the lives of our neighbors who were convicted of these possession crimes. Instead, what we should do is make all possession crimes, without the intent to sell, eligible for expungement. That way you just show the court that you were convicted or ARS 13–3405(B)(1–3) and have your record expunged, no uncertainty.
We Know This Type of Expungement Does Not Work: See Colorado
The city of Denver, CO is believed to have over 14,000 people who qualify to have their record expunged. Plus, the city of Denver has created a free program to help people expunge their records. Out of that 14,000 eligible cases only 444 people have applied to have their record expunged. Of the 444 people only 79 people have been found to be eligible. This is free expungement program, staffed with people who are trained to assist and do this for those with convictions. This model is far superior than the proposed system in the ballot measure and it has been an abject failure. Only 79 expungements since 2018 in Colorado. Click Here or see below.
So the greedy Arizona dispensary owners think that they can parade the word expungement around, while knowing that the only type of expuqngmenet that works is automatic. My parents are in their 80s and were part of the Great Migration from Arkansas and Oklahoma to Arizona, where they met. My grandparents technically had the right to vote when they lived in both of these Jim Crow Southern states. Yet, not until the 1965 Voting Rights Act was the 15th Amendment and the 19th Amendment applied to black people (even though actions continue to be undertook to disenfranchise black people from voting). The reason for the analogy is that yes, this ballot measure provides a pathway for expungement just like the 15th Amendment provided a path way for black people to vote, but in reality it was not worth the paper that it was printed on. Not until real substantive change was made did black people enjoy the same freedoms granted to the rest of Americans, this ballot measure fails to provide a meaningful mechanism to remove these cannabis possession convictions…and the dispensary owners know this!
This Ballot Measure Refuses To Collect Data To Determine How The Legalization of Marijuana Is Effecting Different Populations.
The devil is in the detail, and these shameless Arizona dispensary owners refuse to move towards transparency and rather stay cloaked in the darkness. Colorado’s law requires a full accounting of the impact legalization has had on the state and its demographics. Click here.
After reading this report we have learned that since Colorado has legalized cannabis the arrest rates of black children have increased over 55% from 2012 to 2016 and it decreased for the first time in 2017. The arrest rates for weed for brown children went up over 22%, but the arrest rates for white children went down 10%.
Some might incorrectly argue that blacks are more prone to do drugs or use intoxicants. However, this same data does not support those racist assumptions.
If black people were more predisposed to using substances than you would expect the rate of dangerous drugs would be higher and the alcohol rates would also be reflective. You can barely see any black students having contacts with law enforcement over booze.
In 2016 a lot of articles were written about the shocking jump in the arrest of black children for weed in Colorado. (Click here, and here). This might have caused police to reexamine their policing techniques. Perhaps it caused parents to watch their children and look for signs of cannabis use. Or even it persuaded youth programs and religious organizations to place a greater emphasis on prevention. Regardless, because of all of the articles about black children arrest rates, 2017 had the first decline for black children.
When you collect data you can make impactful policy decisions that can allow your community or state to grow together and prosper. This ballot measure fails to do that and turns its nose at the best practices? What do the authors of Smart and Safe Arizona Act attempting to hide?
The Ballot Measure Creates A Monopoly For Those Who Want To Break Federal Law
First, these smug dope dealers think that they are better than all of those of who sold weed before them, because they wear a suit. These greedy Arizona dispensary owners are just as lawless as anyone who is standing on a corner, hustling trying to make some money to feed their kids. Cannabis is still an illegal narcotic according to the federal law. Yet, you can see how little these despicable dispensary owners feel about all of the people who came before them.
Legitimate, taxpaying business people, and not criminal actors, conduct sales of marijuana. — Page 1 Section 2 (2)(a).
The only appropriate word that I can use to describe the utter contempt these people have for all of the people who have ever been arrested for cannabis is smug. Under the laws of this nation, these dispensary owners are: criminal actors. Their dispensaries are moving more weight in a year than many of the people who have been convicted of selling moved in their lives.
Too these dispensary owners, it is ok to sell weed if you are rich and white, but if you are anything else, you need to be locked up and put in prison.
Instead of investing in the community, while operating these non-profit medical marijuana dispensaries, these greedy dispensary owners were lining their own pockets. These people were building generational wealth doing the same thing, at a much larger scale, that many people’s parents, siblings, spouses, children or grandchildren did or do and were incarcerated for it. Instead of creating funds so that anyone who wanted a medical marijuana card could have one, for free or a significantly depressed price, they were completing mergers over $800 million dollars. Click here and for an even larger one click here. For them this is about creating a monopoly. First, they locked us up for selling cannabis and now they want to lock us out of the legal cannabis industry. In the immortal words of Rosa Parks, when asked to give up her seat on the bus: “Nah.”
Arizona Could Support 600 Different Recreational Licenses Selling Recreational Cannabis Instead of The Maximum of Approximately 170 Proposed in The Ballot Measure.
As of 1 October 2019 Colorado currently has 572 recreational store licenses. Click here. Colorado has approximately 2 million less people than Arizona. Yet, Colorado has more tourism than Arizona, even before they legalized pot. With that said our state could easily support 600 licenses. It is estimated that Colorado will do $1.8 billion dollars in sales of cannabis this year. I would put my SWAG at Arizona doing $1.4 billion dollars in the first full year that marijuana is legal. With the artificial monopoly that these greedy dispensary owners are using they would make about $8.2 million per store, with all things being even. Some of these businesses will be better run than others, but all will do well. On the other hand, if we expanded it to 600 the stores would average $2.3 million per store, same disclaimer. These weed stores look like Apple stores. I know that many of us are concerned about blight in our neighborhoods, but the way these retail shops have been designed the fear is eliminated. Plus, the market will dictate how gully a store can be. If the store is too nasty it won’t get the sales that a better looking store commands.
We have an opportunity to set 40 percent of new licenses aside for people who have been convicted of possession crimes and their statutory heirs (parents, grandparents, spouse, children and grandchildren) this would transform Arizona.
600 opportunities to compete and allow the free-market to determine the winners and the losers is what this country was founded on. What these frightened dispensary owners do not want is fair and open competition. What they are seeking to build is the corrupt forms of communism and socialism. That is not American and that is not Arizona.
These Dispensary Owners Are Creating Rules For Everyone Else And Special Rules That Apply Jut For Them:
On page 7 regarding 36–2854(B)(2) of the ballot measure they fix the maximum fine they can suffer at no more than $1,000.00 a day and $25,000.00 for any 30-day period. That means they could run the most gully shop and their fine is just one stack per day. On the other hand, if you or I take some weed to someone and they pay us for it, we MUST pay a $20,000.00 fine plus we are subject to whatever criminal penalties that our actions have triggered. That language was added to the ballot measure after this sting by the Maricopa County Sheriff’s Office (MCSO). Click Here.
Above, is what will continue to happen. Of the 14 people arrested in this sting operation, two were white and the rest were people of color. Currently in Arizona, there is not one black owned dispensary. Look at this photo we are 6% of the population, and yet we are five of the 14 spots on this mugshot mural. We will continue to be locked up because they have locked us out of the legal cannabis industry.
Each one of these people, above, would be forced to pay a $20,000.00 fine pursuant to the ballot measure if convicted. See page 7–8 regarding 36–2854(E).
Furthermore, since the MCSO found these people via weedmaps.com they would be found to violate 36–2859(G) and that would subject them to another $20,000.00 fine. See page 12. That means these people would be facing criminal prosecution and $40,000.00 in mandatory fines. That is not smart and that does not make our families safer.
Here Are My Thoughts
My bottom line is real expungements that means all possession felonies, regardless of weight are eligible. That reduces the hassle of proving how much weight the person had at the time of arrest. Moreover, it makes the search for people who have been adversely impacted by this system so much easier. Further, create a quasi-governmental body to do proactively comb through the court records to find the people who have been affected by this and expunge their records. People can show up to this place and let them know that they were convicted, but this is doable and is a low-lift.
We need to track and collect the data. The members of the Congressional Black Caucus wanted the 1994 Crime Bill to have data collection element, but President Bill Clinton remained silent on that and had a number of prominent black mayors to go whip up public support for the Crime Bill, as it was. If we had the data we could have seen earlier how the good intentions (that is up for debate) of this Bill were not meeting its intended purpose (again some believed it worked as designed).
If the dispensaries held themselves to the same standard of each infraction being $20,000.00 then I would at least understand the dollar amount, but to have one set of rules for you and one set for everyone else disgust me. Anyone who gets arrested for those acts is going to be facing selling or trafficking felonies, so the criminal justice is enough of a deterrent. $20,000.00 civil penalties are punitive and gross.
No one who cares about Arizona should support this ballot measure. It is petty, it is cruel, it is myopic, it does nothing to redress, reform or right the sins of the War on Drugs. This ballot measure is not legalization it is a cash grab by greedy dispensary owners who are seeking to erecting a monopoly.
The Arizona Legislature should act. When former Republican Speaker of the House John Boehner announced his support for the decriminalization of marijuana a tide had turned. Click here. I see a lot of Speaker Boehner in our current Governor, Doug Ducey. In early 2019, Governor Ducey did too many things that I agreed with and I was feeling very uncomfortable. If he knew how I approved of a number of things he did during a that timeframe, I know he would have questioned himself. Governor Ducey understands business and he understands that, like Thanos, legalization is inevitable. He could put his stamp on this, now it might not be what we all want, but this would have to be bi-partisan because there are too many Republicans who are opposed to the legalization of cannabis on moral grounds. The benefit of the state legislature doing something is that it only takes 31 votes in the house and 16 votes in the senate to pass something or change something, verses the requirements for the ballot measure.
Thank you for reading this and I hope it helps. I will release more information, but I feel like this is a lot already. There are a number of self-dealing clauses in this document that I can highlight, if need be.If you have questions email garrick@azbvi.com or call 623–233–4475. I do appreciate SSAA modifications to the bill, but they fall drastically short. So this is the path that we must travel.
“Aye y’all. Duck.”
That’s what momma said when we was eatin the free lunch
Aw man, God damn, all hell broke loose
You killed my cousin back in ‘94.M.A.A.D City by Kendrick Lamar
In Solidarity,
Garrick A. McFadden, Esq. & Micheal Ingram
