Pubdate: Mon, 21 Sep 2015
Source: New York Times (NY)
Copyright: 2015 The New York Times Company
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Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Kirk Johnson

OREGON'S LEGAL SALE OF MARIJUANA COMES WITH REPRIEVE

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."
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MAP posted-by: Jay Bergstrom