Michael Diaz-Rivera poses for a portrait in his backyard located in Denver’s Clayton neighborhood on August 14, 2020. (Moe Clark, Colorado Newsline)
Back in 2006 — six years before Colorado voters legalized possession of up to 1 ounce of marijuana for recreational use — Colorado Springs Police Department officers arrested then-19-year-old Michael Diaz-Rivera for what he says was less than 1 ounce of marijuana, a misdemeanor.
But the marijuana was in two separate bags, Diaz-Rivera said, giving prosecutors the ability to charge him for possession of marijuana with intent to distribute, then a class 4 felony. To avoid going to trial for distribution, he pled guilty to a lesser charge: possession of more than 8 ounces of marijuana, a class 5 felony at the time.
What Diaz-Rivera didn’t know was that felony would haunt him for years after wealthy entrepreneurs began raking in piles of cash for recreational marijuana sales.
“I have literally watched people get rich off the industry, and I’ve been basically left out of it,” he said.
Diaz-Rivera has begun the lengthy process of trying to get his criminal record sealed from public view. But he might also benefit from new legislation aimed at improving the lives of people with stories like his.
A provision included in House Bill 20-1424 allows the Colorado governor to issue mass pardons for people convicted of possessing up to 2 ounces of marijuana — a move that would be unprecedented in state history. Though thousands of Coloradans could be eligible, it’s unclear exactly how much the new law will achieve on its own as far as helping those with prior offenses receive fair consideration for jobs, housing and loans.
With a felony on his record, Diaz-Rivera found it challenging to get financial aid to attend college at Metro State University and almost impossible to find an apartment when he moved to Denver to get his degree. After graduation, he was accepted and later turned down for a dream role working as a paraprofessional — even after, he said, a college mentor met with school administration and vouched for his character.
“Thinking that I was going to get into education and having that door shut in my face, freshly out of college, was definitely frustrating,” Diaz-Rivera said.
Eventually, he was accepted into an alternative teaching licensure program, he said, enabling him to land his current job teaching fifth grade at John H. Amesse Elementary School in Denver. And his felony didn’t turn up on a background check when he recently moved to a new home with his wife and 1-year-old daughter.
Diaz-Rivera said he finished paying off the more than $2,500 in fines and fees associated with his felony charge from 2006 about a year ago.
Meanwhile, he’s watched people who potentially had also smoked marijuana as teens — but never got caught — capitalize on selling bud to residents and tourists across the state.
The new law, he hopes, will eventually allow him to benefit from an industry that left him in the dust.
HB-1424 allows people who face economic barriers to starting their own marijuana business to receive a “social equity license” similar to accelerator programs for startups in the tech industry.
Under that accelerator license, entrepreneurs could grow their business “under the tutelage of those with years of experience in the marijuana industry,” the bill’s Democratic Senate sponsor, Sen. Julie Gonzales of Denver, explained at a Senate Finance Committee hearing June 12. “Those companies would then also be eligible for financial assistance programs … or for the waiving of licensing fees through the Marijuana Enforcement Division.”
HB-1424 was aimed at helping people of color — who are disproportionately incarcerated for drug crimes and vastly under-represented among cannabis business owners — enter the industry by establishing ways economically disadvantaged people and those with past marijuana offenses could qualify for an accelerator license. In the end, it went a step further.
Sponsored by Rep. James Coleman, a Democrat from Denver, the bill also passed with an ultra-last-minute amendment that included the pardon provision. Gov. Jared Polis can begin issuing pardons Sept. 27, or 90 days after he signed the bill into law.
Polis expressed at the bill signing on June 29 that he plans to take advantage of the provision. But the bill is short on details of how that will happen, and the governor’s spokesperson tells Newsline his office is still figuring it out.
The process will certainly be complicated, and it’s unclear exactly how much it will benefit people like Diaz-Rivera — who even with a pardon would have charges show up on their records — but he remains hopeful.
“We actually definitely want him to be one of the first people that get pardoned,” said Sarah Woodson, a consultant for The Color of Cannabis, an organization that helps people of color enter the cannabis industry.
“Being negatively impacted, he still really pulled himself out of that situation and made good for himself,” Woodson said of Diaz-Rivera.
In the 10 years prior to legalization of recreational marijuana sales in 2014, Colorado Division of Criminal Justice records show more than 16,000 guilty findings for possession of up to 2 ounces of marijuana.
Tristan Gorman, legislative policy coordinator for the Colorado Criminal Defense Bar, said it’s common for people to plead guilty to crimes they didn’t necessarily commit in order to “take advantage of reduced charges or a reduced sentence, or both.”
As a result, that data possibly excludes a wide swath of people like Diaz-Rivera, who may have been caught with less than 2 ounces of weed but pleaded guilty to something different.
The data on race and ethnicity are collected inconsistently by local law enforcement — making it difficult to discern white Hispanic people from non-Hispanic white people — but they clearly show a disproportionate number of Black people were convicted for the crime.
“I have seen that some law enforcement agencies mark Hispanic people as white because (the choices are) essentially, white, black or not, so I think that that could really skew the data on whether you called them Hispanic, you called them Latinos, you classify them as white,” Gorman said. “You really have to check with the courts and law enforcement agencies in every single county in Colorado in order to unwind that data.”
Meanwhile, the data showed 6.88% of findings for possession of up to 2 ounces of weed from 2004 through 2013 involved Black defendants, who represented just 4.6% of the state’s population in 2010, according to the U.S. Census Bureau.
A 2018 Division of Criminal Justice report that did not break down charges in detail found that the arrest rate for Black people on marijuana-related charges (233 per 100,000) was nearly double that for white people (118 per 100,000) in 2017.
The same report found that white people were less likely to experience an on‐view arrest than Hispanic or Black people. On-view arrests, which occur when someone is taken into custody without a warrant or a previous incident report, are classified separately from those involving a warrant where someone is taken into custody; and those where a citation and court summons are issued, but no one is taken into custody.
Out of all arrests of white people for marijuana-related crimes in 2017, 18% were on-view arrests. On-view arrests made up 25% of arrests involving Hispanic people and 39% of arrests involving Black people.
Meanwhile, in 76% of arrests involving white people, 55% of arrests involving Black people and 67% of those involving Hispanic people, the suspect was issued a court summons and citation instead of being taken into custody.
Those inequities stand in stark relief next to 2018 data from the Marijuana Enforcement Division showing white people held 79% of manager licenses, compared with a little over 3% for black people and 11% for Hispanic/Latino people. (The data is based on the licensees who included their race and ethnicity on applications in 2018 — about a quarter of people did not.)
White people held 88% of owner licenses, while Black people held slightly over 2% and Hispanic/Latino people held 5%.
According to population estimates for 2019 from the Census Bureau, 67.7% of Colorado’s population is white and non-Hispanic, 4.6% is Black and 21.8% is Hispanic or Latino.
Black people were slightly overrepresented among marijuana business employees. They held 6% of support licenses, while Hispanic people held just 15% and white people held 70%.
A last-second amendment
“Social equity, racial equity, needs to be a cornerstone lens that we view the world from,” said Rep. Jonathan Singer, a Democrat from Longmont whose term at the Legislature ends after this year.
Before Amendment 64 passed in 2012, legalizing recreational marijuana in Colorado, Singer was one of just two state lawmakers who supported legalization. A social worker who had no intentions of being a leader on cannabis when he ran for office in 2011, Singer became known as a trailblazer for the industry, working to increase access to medical and recreational marijuana through a variety of legislation.
“I was a social worker before I was a lawmaker, and my goal was never to create a new successful industry anywhere,” Singer said. “It was to fight for social justice.”
At the outset, a key priority for Singer’s final year in the Legislature was to pass an expansive bill that would have created a way to automatically expunge the records for certain crimes, including those for marijuana that would have been moot had they been committed after decriminalization.
Then, COVID-19 hit. Because the expungement bill would have required funding for a database system, it was never introduced in the Legislature due to the budget shortfall.
He now regrets that the laws and regulations legalizing retail marijuana didn’t include forgiving people for past drug-related crimes.
“I like to tell people that up until a couple of years ago, Colorado I would say was a leader in our legalization and regulation efforts,” Singer said, pointing to Illinois’ plan for mass expungement as superior.
“I hope that other states look at Colorado and say, ‘Well, we’re going to do better than Colorado, because when we legalize this, we’re going to level the playing field by day one,’” he said.
Singer hated knowing that the cannabis industry he helped create still excluded the people who — as Polis would later joke at HB-1424’s signing — were punished for being “a little bit ahead of their time.”
“I honestly wasn’t sure how I was going to be able to live with myself,” if he wasn’t able to pass something akin to expungement before leaving the Legislature, Singer said.
Then, he saw Coleman’s social equity license bill moving through the Legislature in its final days, and inspiration struck. With the help of consulting firm VS Strategies, Singer crafted an amendment that would allow Polis to issue a mass-pardon.
Singer joked that was the only week he ever met his step goal, carving out 10,000 steps in a single day as he trekked between the House and Senate chambers trying to drum up approval for his plan. The amendment was finally approved with the stipulation that the governor could seek relevant input from law enforcement and prosecutors before automatically issuing pardons.
If Polis does indeed issue a pardon for thousands of people at once, the move would be entirely unprecedented in Colorado history.
Former Gov. John Hickenlooper, a Democrat, granted just 156 pardons and a handful of sentence commutations during his eight years in office, according to the Restoration of Rights Project. His predecessor, Democratic Gov. Bill Ritter, granted just three pardons until his final two weeks in office, when he issued 39 pardons (one posthumously) and 10 commutations.
Pardon can only go so far
Singer acknowledges that the mass-pardon amendment was just a preliminary step. While a pardon theoretically might help lessen the “collateral consequences” associated with a conviction — such as barriers to employment and housing — it won’t keep charges from showing up on any background check. Only expungement can do that.
“Employers and landlords are certainly more likely to ignore a conviction if they know an applicant has received a pardon,” Courtney Barnes, an associate attorney at Denver-based law firm Vicente Sederberg, said via email. “However … a pardon does not automatically seal a criminal record, so in practicality, his or her criminal record would still likely be accessible to an employer or landlord and could be considered in decision-making by either of the aforementioned parties.”
Barnes also said people convicted of cannabis-related crimes that are now “constitutionally protected as a result of the passage of Amendment 64” may be able to apply to have their convictions vacated, criminal records sealed, or both.
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Advocates for equity are trying to let more people know about those alternate options.
The Color of Cannabis will hold the first of several regular, ongoing record-sealing clinics on Aug. 22 with support from Vicente Sederberg along with marijuana dispensaries Lightshade, Native Roots and Terrapin Care Station, Woodson said.
The events will help people determine whether they’re eligible for record sealing, obtain documents, and file motions and requests with courts and law enforcement agencies.
In the meantime, Singer hopes that his amendment will at least draw attention to the issue of equity in the justice system and marijuana industry, making people ask, “Why are we creating this roundabout way of doing things?”
In doing so, he thinks that people will be more willing to create an automatic expungement process through future legislation.
“By expanding the governor’s authority to pardon convictions for low-level cannabis offenses, the Legislature took another step toward fixing the damage caused by decades of cannabis prohibition,” Jordan Wellington, a partner at VS Strategies, Vicente Sederberg’s consulting affiliate, wrote in an email. “We hope it will provide some relief to the many individuals whose lives have been encumbered by the collateral consequences associated with a cannabis conviction.”
Wellington added that stakeholders were “confident the governor’s office will carry out a thorough process to determine who is potentially eligible for a pardon, and we expect it to apply this new authority thoughtfully and in the manner it was intended by the Legislature.”
As of Aug. 6, the governor’s office was “still reviewing the process and possibilities,” spokesperson Conor Cahill said in an email.
“There are thousands of Coloradans who could be subject to the new law, and we are doing everything in our power to ensure that, once we set the process up, it is comprehensive and runs smoothly,” he added. “That takes time.”
For his part, Diaz-Rivera plans to continue pursuing record sealing and a pardon from the governor, if and when that path opens to him.
He also hopes to benefit from the social equity license program and is researching opportunities for starting a marijuana grow, creating cannabis-infused products or starting a marijuana delivery venture, he said.
But his plans don’t end there.
“I feel like my felony doesn’t affect me as much as in the past, so what I’m really hoping to do in the near future is find those people who actively, their life is being oppressed by these unjust laws,” Diaz-Rivera said. “It doesn’t affect me as much, so I’m just recognizing my privilege and wanting to help others.”
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