In 2002, 23-year-old Frank Ungaro made a serious mistake. He’d been smoking pot since he was a teenager in western New York state, but he’d since moved to Fort Collins, Colorado, where he’d graduated to selling marijuana. He was never a major dealer, he says. He sold marijuana on the side while working a pizza delivery job. “I wanted to make a little bit more money,” he says. “I wasn’t trying to get rich.” Whatever his motivations, his side business came to an end 12 years ago when he found himself pulled over by police in Boulder with 4 to 5 pounds of pot in his car.
Ungaro pleaded guilty to possessing 8 ounces or more of marijuana, which was then a Class 6 felony in the state, and was sentenced to 18 months probation. But he was proactive in turning his life around—abstaining from pot and alcohol use, acing his behavioral treatment program—and he got off probation six months early.
“I didn’t want to get wrapped up in the system,” he explains. “I wanted to move on with my life.”
Twelve years later, that still hasn’t happened. Ungaro’s run-in with the law has haunted him, as felony convictions tend to do. Because his conviction was less than 10 years in the past, he had to jump through extra hoops when he applied in 2005 to get a real estate broker’s license, including writing a personal appeal to the Colorado Division of Real Estate. He can’t have any guns in his house, not even the old hunting rifles he and his father used when he was younger, and there are certain states, like Kentucky and Virginia, where he’s unlikely to take up residence because as a felon he wouldn’t be able to vote. While that’s not a problem for him in New York, where he moved with his family several years ago, he faces other hassles. As the owner of a call-center business that deals with financial information, he has to navigate licensing procedures in dozens of states—and for each, he has to explain his felony conviction.
But in 2012, Colorado voted to become the first state to legalize marijuana, allowing people to manufacture, store, and ultimately sell far more marijuana that Ungaro was caught with.
So when Ungaro heard about a new Colorado drug-sentencing law that, among other things, allows people to apply to have their old felony drug convictions changed to Class 1 misdemeanors, he filed a motion with Boulder District Court to vacate his felony based on the new law. “It seemed like I was the perfect candidate for it,” he says.
Ungaro is likely among the first offenders who will try to clean their records of marijuana crimes that, as the political and cultural landscape shifts, are no longer considered so serious. Their stories are an important part of the larger narrative of marijuana legalization. It’s not just about letting people smoke. Legalization attempts have long focused on righting the many injustices of marijuana convictions, which disproportionately plague minority populations, have fueled the growth of a giant and expensive prison system, and wreaked havoc on peoples’ lives with little evidence that the steep penalties deter consumption.
And despite the public’s growing tolerance of marijuana, pot arrests have actually increased nationwide. According to the American Civil Liberties Union, in 2010, marijuana arrests accounted for nearly half of all drug arrests in the country, up from 34 percent of all drug arrests in 1995—and 90 percent of those 2010 pot arrests were for simple possession rather than for dealing. In total, between 2001 and 2010 (the last year for which there’s good data available), more than 7 million Americans were arrested on marijuana charges. While more recent data is limited, the few studies that have been released suggest the tide could be turning: Nationwide marijuana arrests reportedly dropped in 2011 and were relatively flat in 2012. Still, even with these declines, total marijuana busts remain at historically high levels—even as more and more states were legalizing medical marijuana.
As Eric Sterling, president of the Criminal Justice Policy Foundation, puts it, “It is not enough to say, ‘Great, now people in Colorado can buy and use marijuana and not have to worry about the cops,’ when you have a substantial number of people in Colorado who are imprisoned and a greater number who have a criminal record because of marijuana.”
Already a leader in the legalization of recreational marijuana use, Colorado could also be among the first states to confront the problem of what to do about all these pot convictions. Statewide pot busts are already dropping. In January, a Denver Post investigation found that marijuana court charges plummeted 77 percent in the year following the passage of Amendment 64. And this wasn’t just for minor marijuana offenses that had been legalized by the amendment; charges for possessing 12 ounces of pot or more also dropped by nearly three-quarters, and possessing 5 pounds or less with intent to distribute plunged by 70 percent. (The shift might be less about law enforcement policy changes and more about cops not knowing who they’re allowed to bust anymore under new marijuana laws. As Colorado Attorney General John Suthers told the Post at the time, “I think [law enforcement have] kind of thrown their arms up in the air.”)
Soon, old Colorado pot convictions might go away, too. In March, the Colorado Court of Appeals overturned the 2011 conviction of a woman who possessed less than an ounce of marijuana and marijuana concentrate because her appeal was still pending when Colorado voters passed Amendment 64 in 2012, which legalized such conduct. While the court suggested in its decision that its ruling would only apply to those who were still in the appeals process when marijuana became legal in Colorado, some defense attorneys are arguing the decision should be interpreted to encompass all Colorado defendants convicted of possessing less than an ounce of pot. Even if that legal argument doesn’t hold up, such low-level pot convictions could still be mitigated, thanks to a legislative proposal to seal all convictions for marijuana offenses that are now legal under Amendment 64, which means they wouldn’t appear on criminal background checks.
So are we likely to see thousands of Coloradans clamoring to wipe minor possession charges from their records or, like Frank Ungaro, working to downgrade felony marijuana convictions to misdemeanors? Is Colorado set to launch the next stage of the marijuana revolution, one that leads to the courts and prisons being emptied of marijuana offenders?
In fact, it’s quite the opposite, at least so far. None of the Denver-based marijuana legal advocacy groups or specialized law firms that opened in Denver to represent marijuana industry clients and work on policy reform report even a single person coming to them to appeal or downgrade prior marijuana convictions, nor has the Colorado ACLU picked up any such clients. In fact, after weeks of searching for such cases, we could only find Ungaro as an example of anyone actively trying to appeal his or her marijuana conviction based on new state laws.
Why aren’t we seeing legal upheaval? Likely because Amendment 64 didn’t legalize everything to do with marijuana; it just legalized personal possession of up to an ounce of it—something that was a low-level petty offense before the law changed. As John Krieger, communications director of the Colorado ACLU, points out, “In Colorado, if you had less than an ounce [before Amendment 64 passed], you were essentially getting a traffic ticket.” So it’s hard to imagine lots of people bothering with the money and effort to remove such minor blots from their records.
But as marijuana prohibitions continue to weaken and an increasing number of states reconsider stringent drug sentencing rules, people could begin to lobby to remove more serious pot convictions from their rap sheets or even get out of prison, either through legal appeals such as Ungaro’s or through clemency efforts aimed at governors or the president. (In April, the Justice Department seemed to open the door to such efforts by announcing new clemency criteria that gave priority to those currently serving sentences for low-level, nonviolent crimes that would come with lower sentences if they were convicted of them today.)
However, if either the courts or clemency boards take up the work of reviewing past marijuana convictions, they will have to tackle a very thorny issue: Convictions don’t always match the crime that was committed. Many of the low-level offenders who might seek clemency struck plea deals with prosecutors, and those negotiations can obscure the underlying crimes. UCLA drug policy expert Mark Kleiman offers an example: “It’s entirely possible that a guy was charged with possession with intent to distribute cocaine and cannabis, and the plea bargain he pled to was just the cannabis charge.” So how do you determine, sometimes many years later, whether a given conviction actually corresponds to a defendant’s true criminal culpability? And even if a marijuana conviction does in fact correspond to a marijuana offense, are all marijuana offenses created equal? Should it matter whether the 12 ounces of pot someone was busted with came from small-scale farms in Humboldt County, California, or were imported from Mexico by drug cartels?
Ungaro’s case is a perfect example of how tricky parsing these marijuana convictions can be. On the surface, his conviction might seem perfect for the new Colorado law that allows people to downgrade drug felonies to misdemeanors, since the possession he pleaded to isn’t even a felony anymore. But if he were caught in Colorado today with the same 4 to 5 pounds of marijuana, and it wasn’t associated with the state’s tightly regulated medical or recreational marijuana industries, he’d still be breaking the law. That fact might be one of the reasons why in May, Boulder District Court denied his motion to vacate his conviction.
Still, Ungaro isn’t giving up. He’s taking the case to the Colorado Court of Appeals. The process won’t come cheap; he’s already paid his lawyer $4,000 in fees. Legal costs are likely another major factor in why most of the people in his shoes aren’t bothering to challenge their old pot convictions. But Ungaro is willing to do so in order to set a precedent. “If this is a case that someone else can look to and say, ‘We are in a similar situation,’ that’s a good thing,” he says. “If it means less people going to jail, less people having their lives flipped upside down, that’s money well spent.”