Passed in 2014, it was hailed as a groundbreaking development in criminal justice reform, but racial inequality remains.

Los Angeles, California, United States – “If you go to jail, and I have the same amount of drugs as you, my sentence is automatic state prison,” Donnie Anderson says. “Yours is go home.”

Anderson is a Los Angeles businessman. And what he means is this: he’s black, I’m white.

“The judicial system is rigged against us,” Anderson says.

He’s not talking hypothetically.

The arrest happened on a Saturday. Saturday, March 1, 1986, to be precise. Anderson says he was at his aunt’s neighbour’s house, hanging out and gambling with some friends. He was eating a breakfast sandwich his aunt had made for him.

The judicial system is rigged against us Donnie Anderson

The police showed up, and his friends scattered, Anderson says. They had drugs on them.

“I stayed because I knew I had nothing,” he explains. “I had money but no drugs. [The police] pulled me and they said, ‘You sold something’, and I said, ‘I never sold no drugs to nobody. I have money because we’re gambling’.”

The police didn’t believe him. Anderson was charged with transport/sale of a controlled substance – a felony. It carries a maximum sentence of five years in state prison and a fine of up to $20,000. Anderson was two months shy of his 20th birthday. He accepted a plea deal: 60 days in county jail and three years probation.

But even after the probation was over, the felony stuck with him. People with felony convictions in California can’t serve on juries, or legally own firearms.

They can be denied employment on the basis of the felony conviction alone. A felony conviction can make it difficult or impossible for people to travel to certain countries, such as Canada.

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Racial inequality

According to a 2010 study, there is likely to now be more than 20 million people with felony convictions in the United States. Black people are heavily overrepresented in that group, and in the criminal justice system overall: the prison population is almost 40 percent African American, while the country as a whole is less than 15 percent black. And overincarceration is a problem across the country, but perhaps nowhere more so than in California. In 2009, prisons were so overcrowded that the federal government issued an ultimatum, in the form of a Supreme Court ruling: fix it, or we’re taking over.

Through a series of manoeuvres, the prison population was slowly reduced. Then, in 2014, California passed a ballot initiative called proposition 47. It downgraded half a dozen felony charges to misdemeanours, including drug possession, and some petty theft. After prop 47, those crimes carried significantly lower sentences, and none of the lifelong consequences that felony convictions do.

Unfortunately, that discretion ends up playing out largely along race lines, where people of colour get intent to sell and white people get possession Lynne Lyman, California state director at the Drug Policy Alliance

Following the passage of prop 47, tens of thousands of people saw the red mark of a felony conviction permanently erased from their record, and an estimated 13,000 prisoners were released. It was hailed as a groundbreaking development in criminal justice reform.

University of California Berkeley public policy professor Steven Raphael says, in terms of lowering incarceration rates, prop 47 has been a huge success.

Research into the effect it’s had on racial inequality in the criminal justice system hasn’t been completed yet, he says. But he thinks the ballot measure has most likely been a boon to communities of colour.

“I’m almost certain that the declines in incarceration rates for racial and ethnic minorities have been larger than they have been for whites, simply because they’re so heavily overrepresented in California’s institutional populations.”

Study after study has shown [PDF] that while people of all races are equally likely to buy and deal drugs, people of colour – and black people in particular – are much more likely to be charged, convicted, and harshly sentenced for those crimes.

According to the American Civil Liberties Union (ACLU), black people are incarcerated for drug crimes at 10 times the rate of white people.

Within the gamut of drug crimes, people of colour are also more likely to be charged with and convicted of dealing drugs. According to one 2009 study [PDF], black Californians were almost twice as likely to be charged with dealing drugs. White Californians, on the other hand, were more likely to be charged with drug possession.

Under prop 47, simple drug possession was downgraded, but dealing charges – charges like Anderson’s – remained felonies.

Lynne Lyman, the California state director at the Drug Policy Alliance, worked on legislative predecessors to prop 47. And in the early days, she had hoped prop 47 would include drug possession with intent to sell. But that was deemed “too risky”, she says, and didn’t make it into the final ballot initiative. Polling showed voters were ready for drug possession to be downgraded, but not necessarily dealing – or intended dealing.

So, while Lyman thinks prop 47 was an important and worthy initiative, she worries about its unintended consequences for communities of colour.

“We don’t have proof of this, but what we feel like is happening is that the police are charging up to avoid prop 47, because it is discretionary,” she says. “Simple possession versus possession with intent is completely discretionary.”

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It’s discretionary because, in California, there is no minimum quantity of drugs necessary to charge a person with intention to deal a drug, Lyman says. The decision of what to charge someone with comes down to the discretion of the police officer and prosecutor. And that leaves the system open to racial bias.

“Unfortunately, that discretion ends up playing out largely along race lines, where people of colour get intent to sell and white people get possession.”

‘Pushing the envelope’

Lyman is now working on a new ballot initiative – proposition 64, or the California Marijuana Legalisation Initiative.

If it passes in November, Lyman says, California will be the first state to legalise recreational marijuana and reform its marijuana laws all at once. A whole slew of marijuana charges will either be eliminated or downgraded from felonies to misdemeanours or infractions.

That means that, if prop 64 passes, thousands of prisoners and former prisoners with non-violent marijuana charges will be able to apply for release or to get the felony removed from their record.

It’s a big step forward, Lyman says. Emboldened by the resounding success of similar votes in Colorado and Washington, “we decided to push the envelope in California, which we didn’t do anywhere else”. Elsewhere, she says, advocates have had to scramble to pass the kind of reform that’s built into prop 64.

And it is in large part because of prop 64’s envelope-pushing criminal justice reforms that Donnie Anderson supports it. In the years since 1986, Anderson has become a vocal advocate for people of colour in California’s booming medical marijuana industry – an industry that is overwhelmingly dominated by white people. He’s on the California NAACP’s cannabis business development committee.

“It’s so important for African Americans and Latinos to understand that this is for us,” he says. “And it’s good for us.”

Of course, prop 64 would only downgrade offences for marijuana – not other drugs. Lyman says she’d love to get full decriminalisation for drug charges. But it’ll take a while, she says, smiling. She looks tired.

“I think it’s a 10-year battle, honestly. These things are harder than they seem, sometimes.”

Anderson, too, would like to go further than prop 47 and prop 64. Penalties for all drug charges should be “getting pushed down”, he says.

But he’s not holding his breath for his own felony conviction. He’s decided to ask the governor’s office for a pardon, which would finally wipe the felony off his record. Anderson has been waiting on the pardon for a year now. He’s hoping it’ll come through by the end of the month.

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