Arizona has some of the harshest marijuana laws in the country. Despite a decline in crime, the number of incarcerated people in Arizona has grown by a factor of 12 between 1978 and 2015, enough to earn the fourth highest incarceration rate nationwide.
Many, like Arizona state Rep. Kirsten Engel, believe Arizona's criminal justice reform pales in comparison to the rest of the country.
What does this mean for ASU students?
Arizona is the only state in the nation where the smallest possession of marijuana is classified as a felony. ASU students who use recreational weed are at a high risk of landing a charge for something that is legal in many states.
Some ASU students have found themselves victimized by strenuous laws, namely for nonviolent drug crimes that are enforced on a discretionary basis.
One ASU student, John, who preferred to remain anonymous for reasons that will be clear shortly, was arrested on suspicion of using marijuana.
He is an out-of-state student from an area where recreational marijuana usage is legal for those over the age of 21. John is in good academic standing and active on campus and in his community.
“We were in this parking lot smoking (marijuana), and that’s when two officers approached us," John said. "They cuffed me and my friends, took turns talking to us and ended up letting one of my friends go. They took my other friend and I down to the station. They arrested us for possession of marijuana and possession of drug paraphernalia, which are both felonies. I was with two friends, one was male and one was female. They didn’t arrest my female friend, but they arrested my (male) friend and me.”
Police caught all three students in the act of smoking marijuana.
For first time offenders of marijuana possession, this Class 6 felony charge is often pleaded down to a misdemeanor or wiped off someone’s record if the offender completes a pre-trial diversion program. These programs commonly consist of a series of classes and drug tests.
State of limbo
The statute of limitations for minor drug crimes like these also pose a serious stressor for those who were arrested but not formally charged.
Individuals like John who were arrested for possession of marijuana have not been officially charged because the statute of limitations for these crimes is seven years. This forces those arrested into a state of limbo, waiting to see if the charges will actually be imposed or if they will slip through the system.
“Frequently, we have clients that get charged two or more years after the offense,” David Black, a criminal defense attorney at the Law Offices of David A. Black, said. “I’ve seen where a student, who might have been a freshman when the offense occurred, getting charged with a felony nearing the end of his or her senior year – for possessing a joint years earlier.”
In comparison, the statute of limitations for sexual assault charges is two years.
“Because of the statute of limitations, I could be out of school and have a job by then, and under the current law, they can still charge me,” John said. “This was my first offense. Before that, I had never had so much as a parking ticket. That was my first encounter with law enforcement.”
Arresting individuals, namely college students, for nonviolent petty crimes may subject them to life-altering labels.
Bret Royle is a defense attorney in Arizona who works cases related to marijuana possession. He said a conviction can affect current and future employment, housing and academic applications. “The whole thing is completely avoidable in my mind. There’s just no reason that simple possession of marijuana should be a felony.”
John said that after his arrest, he began talking to a lot of people who had been arrested at ASU.
"It seems like it’s an issue that affects a widespread amount of people. To slap someone with a felony like that and basically brand them for life,” he said.
Mass incarceration
Arrests, especially for marijuana possession, disproportionately affect minority groups.
According to the National Organization for the Reform of Marijuana Laws, a black person is 3.73 times more likely to be arrested for marijuana possession than a white person, despite studies stating that both groups use marijuana at comparable rates.
“Too many people’s lives have been destroyed, and children are without parents because of mass incarceration,” Royle said. “Private prisons have a financial interest in more people being sent to prison rather than placing a focus on rehabilitation.”
But the financial incentive for private prisons to incarcerate more people does not translate to local law enforcement.
Shannon Scheel, the director of Drug Prevention and Education Initiatives at the Maricopa County Sheriff's Office, said local law enforcement does not have time to police petty drug offenses.
Despite the state law saying people can be incarcerated for marijuana possession, it is rare for offenders to face jail time on their first, second or even third possession of marijuana charge, Scheel said. It is often only on the fourth or fifth arrest for marijuana possession that a person is sent to jail.
“This isn’t the population we are worried about, or at least who Sheriff Penzone is worried about. We are worried about violent offenders and people who are going to jail 10-15 times a year. That is the biggest cost,” Scheel said.
He also emphasized that the police department does not make the laws, but simply enforces them, and that there is a major disconnect between the state legislature and Sheriff Penzone’s hopes for reform.
“People legislating and telling people in this field what to do and how to do it is very frustrating,” Scheel said. “They are all worried about their constituents and the public who don’t deal with this population. That is one of the biggest frustrations the sheriff has had since becoming elected.”
He said the Sheriff’s office is instead focused on helping incarcerated individuals with severe substance abuse issues re-enter society with the resources to find a job, reconnect with family and become sober.
In 2018, former Republican state Rep. Paul Mosley sponsored a bill to reduce possession of up to 3.5 grams of marijuana from a felony to a misdemeanor charge. But despite having 36 other co-sponsors on the bill, it was rejected by the House.
As of June 2019, Gov. Doug Ducey only signed one out of 17 proposed bills contributing to criminal justice reform.
This highlights the dissonance between Arizona lawmakers and the nation’s attitude toward marijuana possession.
In addition, political analysts predict that a marijuana legalization bill will appear on the 2020 ballot.
The Arizona Appeals Court determined in 2018 that cannabis extracts are illegal regardless of whether the buyer holds a medical marijuana card. In an important case for the state, medical marijuana cardholder Rodney Jones was subjected to 2.5 years in prison after he was arrested in 2013 for unlawful possession of marijuana extracts.
But the Arizona Supreme Court ruled in 2019 these medical cannabis extracts are legal. Despite this, Jones was still required to serve time in prison for an offense that was later deemed legal.
A need for progress
Royle said that while a conservative state like Utah only imposes a felony charge on marijuana possession of over a pound, Arizona cannot seem to progress.
“While I understand that the issues surrounding marijuana decriminalization or legalization are tremendously complex, it seems obvious to me that a small amount of marijuana for personal use shouldn’t be a felony,” he said.
Many people across the nation are still serving prison sentences for possession, even in states where marijuana has become legal. The Prison Policy Initiative estimates that roughly 21% of inmates are incarcerated for a drug-related crime.
“We need to change the sentencing guidelines,” Black said. “They are mandatory in Arizona and create some absurd results. They take away discretion from the judiciary and give it to prosecutors.”
Royle said the wide scope of discretion for arrests, along with the severity of marijuana charges, could potentially create a cesspool for discrimination and unfair treatment under the law.
He also said police enforcement concentrates in areas where criminal activity is common, such as high crime neighborhoods, parks and schools at night.
“Worse is when it appears that police are focusing enforcement in lower-income communities, minority communities or student-based communities,” Royle said. “These tactics not only erode the community’s trust in law enforcement, but they lead to a disproportionate number of arrests and convictions within certain neighborhoods and communities.”
More people were incarcerated in 2016 for marijuana possession than those incarcerated for murder, rape, aggravated assault and robbery combined.
“Arizona is facing a huge problem because we have managed to secure both felony and misdemeanor convictions for so much of our population,” Royle said. “While much of the population is currently incarcerated, many others carry with them the scare of a previous conviction. When Arizona residents go to apply for jobs or housing, background checks and old convictions are coming back to haunt them.”
ASU PD did not respond to requests for comment.
Reach the reporter at amsnyde6@asu.edu or follow @AnnieSnyder718 on Twitter.
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