Up until the November 2020 election, Arizona was one of a handful of states that made possession of marijuana a felony conviction. Felony convictions are serious and can lead to at least a year in jail, as well as a criminal record that limits your ability to apply for community benefits such as food stamps or Pell grants for college tuition.

However, during the November 2020 election cycle, Arizona included Proposition 207 on its ballot asking the voters to approve an initiative that would radically change how Arizona regulates marijuana. In a 60-40 margin, voters approved Proposition 207, legalizing marijuana in the state of Arizona.

What is Proposition 207?

Proposition 207, or the Marijuana Legalization Initiative asked the voters to vote “yes” or “no” to the Smart and Safe Arizona Act. The ballot included the following:

A “yes” vote supports this ballot initiative to legalize the possession and use of marijuana for persons who are at least 21 years old, enact a tax on marijuana sales, and require the state Department of Health and Human Services to develop rules to regulate marijuana businesses.

A “no” vote opposes this ballot initiative, thus keeping the recreational possession and use of marijuana illegal under state law in Arizona.

By approving Proposition 207, Arizona became the 15th state, plus the District of Columbia, to legalize marijuana. The initiative will not take effect until all the ballots have been counted and certified by the Secretary of State, likely to be completed by the end of November. Once certified, Governor of Arizona, Doug Ducey will issue a proclamation turning Proposition 207 into Arizona law.

Notably, even once certified, legal sales of marijuana will not begin until around March 2021 after dispensaries have been issued licenses by the state.

What Changes Are in Proposition 207?

The major changes that Proposition 207 implements include:

• Adults who are 21 or older may legally buy and possess up to one ounce of marijuana and cultivate up to six plants for personal use. Up to 12 plants may be cultivated in a household where two or more persons of 21 years or older reside.
• The Arizona Department of Health Services will create regulations to approve licenses for recreational marijuana dispensaries. The application period will begin on January 19, 2021 and end on March 9. Medical marijuana dispensaries will also be able to apply for recreational licenses, allowing them to sell both medical and recreational marijuana at one dispensary location.
• All cannabis sales sold at licensed dispensaries will be subject to a 16% excise tax. The tax revenue generated from these sales will be used toward various community programs such as funding community colleges, police and fire departments, the state’s Highway User Revenue Fund, and a new Justice Reinvestment Fund.
• Marijuana use will still be illegal in public places like parks and sidewalks, but offenders may only be charged with a petty offense.

Proposition 207 and Criminal Justice Reform

Proposition 207 also includes restorative justice measures. Beginning on July 12, 2021, those who have been charged with certain marijuana convictions may petition the court to have their charge expunged.

This means that the charge is legally erased and persons will not be subject to the same limitations they once were with a felony conviction. This will open the door to more job opportunities and community benefits for previous offenders.

Proposition 207 also implements a Social Equity Ownership Program which will ensure that licenses are issued to communities disproportionately impacted by the enforcement of previous marijuana laws.

Pending Marijuana Charges in Arizona

At least one county in Arizona has pledged to drop all pending charges for recreational marijuana use that would have been subject to Proposition 207 had the initiative been passed earlier. The Maricopa County Attorney’s Office has stated that they do not plan on using community resources to prosecute pending marijuana cases and instead will begin listening to the will of the voters immediately by dropping charges.

What About Federal Marijuana Law?

While Arizona and several other states have legalized marijuana use, the federal government also regulates marijuana and currently has stricter marijuana and drug legislation.

Under the Controlled Substances Act, regulated substances are placed into five categories. Marijuana is in “Schedule I” which labels marijuana as having a “high potential for abuse” and “not currently accepted [for] medical use.” Any Schedule I substance may not be distributed, possessed, or cultivated, except in an approved research study.

For reference, under the Controlled Substances Act, marijuana is in the same category as heroin, but cocaine and meth are in Schedule II, a lesser restrictive category.

Both Congress and the U.S. Drug Enforcement Agency have the authority to change the Schedule category of marijuana. However, all efforts to re-schedule marijuana have been unsuccessful up to this point.

The Supreme Court has held that even though a person may be in full compliance with a state’s laws regarding marijuana, a person may still be charged with the federal crime and respect for the state law will be no defense.

Federal Enforcement of Marijuana-Related Crimes

So you may be wondering how much of a difference Proposition 207 makes if marijuana is still illegal under federal law?

Even though federal law still maintains that marijuana is illegal, the law has not been enforced since 2013. In 2013, the Obama administration authored the “Cole Memo.” The Cole Memo set guidelines for the U.S. Department of Justice to follow, stating that the Department should pursue a policy of non-interference in states that have legalized marijuana unless a federal interest was implicated.

Under the Trump administration, Attorney General Jeff Sessions rescinded the Cole Memo, calling for the federal U.S. attorneys of each state to choose whether to prosecute those in violation of federal marijuana law. However, Jeff Sessions no longer serves as Attorney General. Current Attorney General William Barr has not reinstated the Cole Memo, but has stated that he will accept it for now.

Given that President-Elect Joe Biden served as former President Obama’s Vice President, we can likely expect that a Biden administration will be supportive of the Cole Memo and that a Biden-led Department of Justice will likely limit marijuana enforcement at the federal level, allowing the states to freely regulate marijuana in the way in which they choose.

Ultimately, individuals and businesses should decide for themselves whether they wish to risk federal prosecution. Many already have and it is expected that many more will, as Arizona was one of four states to legalize marijuana for recreational use during this past November 2020 election cycle. With growing pressure from the states, the federal government’s policies regarding marijuana may soon change.

Contact an Attorney for Representation

Proposition 207 may bring much relief to those who have been previously convicted of certain marijuana related crimes or have a pending charge against them. Navigating a new law, with varying timelines of implementation, can be confusing. However, the payoff of being free from a felony conviction has the potential of opening up new doors for those convicted. To see your way through the process, it is best to contact an experienced Arizona attorney to help you with you with your claim.