Florida could legalize marijuana, but people arrested still face tough road

When Kim Johnson was pulled over in April during a traffic stop, she wasn’t worried about the three pot gummies in her purse.

A Treasure Island police officer found them while searching Johnson’s car after ticketing her for driving with a suspended license.

The officer found the slightly melted gummies in a clear plastic baggie and asked Johnson, 47, if she had a medical marijuana card. She didn’t. She figured she might get a fine. Then the officer told her having the gummies in her possession was akin to having Xanax illegally, she said.

The officer charged her with possession of a controlled substance, a felony that could carry a penalty of up to five years in prison. Johnson cried.

Over the last several decades, hundreds of thousands of Floridians have been arrested for having an amount of marijuana that could soon become legal if a proposed amendment passes in November.

Amendment 3 would allow people to possess up to three ounces of recreational marijuana. But even if it passes, the records of those who’ve already been arrested won’t be cleared.

Under Florida law, a single constitutional amendment can’t tackle two separate issues at the same time, meaning the amendment couldn’t both remove past convictions and legalize recreational pot.

The group sponsoring Amendment 3 says it wants such record expungements in the future if the amendment passes.

But that provides little comfort to the thousands of Floridians who have already been arrested for marijuana possession.

Florida’s tough marijuana laws

Even when compared to other conservative states, Florida has some of the harshest penalties for small amounts of marijuana.

Possession of 20 grams or less of marijuana is a first-degree misdemeanor, which can be punished by up to a year in prison. Having more is a felony. Someone with 22 grams of marijuana and someone with 22 pounds of marijuana could both face third-degree felony charges, which can carry a prison sentence of up to five years.

Thousands of people in Florida each year are charged for having small amounts of marijuana, court data shows.

Some jurisdictions — including Hillsborough County — have moved toward issuing more civil citations with fines or other penalties instead of charging people with crimes.

But arrests still happen. After a dip at the beginning of the COVID pandemic, the number of filed charges statewide has actually increased in recent years. (The data does not include Duval and Flagler counties.)

Last year, prosecutors filed more than 66,000 charges against people for possession of small amounts of marijuana.

Florida’s marijuana possession laws are “among the worst marijuana laws in the entire country” and are “unduly punitive,” said Paul Armentano, the deputy director of the marijuana advocacy group NORML.

“They’re out of step with the rest of the country and they’re out of step with public opinion,” he said.

In Georgia, another state run by Republicans, it’s a misdemeanor to have one ounce of marijuana or less in your possession. In Florida, having an ounce of marijuana would be a third-degree felony.

Arrests of any kind can affect people’s ability to get jobs, secure housing and more. Andrew Brown, a 35-year-old living in Miami, was arrested with a misdemeanor in his early 20s for marijuana possession. He spent nearly a month in jail in Utah for it.

Brown said he used to smoke marijuana in his car because he didn’t want the smell to bother people in his apartment building. When an officer pulled him over in a traffic stop, they smelled marijuana and searched the car and found a small amount of pot.

The arrest stopped him from passing background checks and getting financial aid when he wanted to return to school.

Brown was able to get the case sealed after working with a nonprofit clinic. He was able to get a security job and eventually earn a commercial driving license.

Brown, who no longer smokes, said adults shouldn’t have a pot arrest threaten schooling or job prospects.

“It was a huge headache, but I’m just really happy that it’s over with,” Brown said.

Arrests are likely to drop if Florida legalizes recreational marijuana. A 2022 study published in the Journal of the American Medical Association found that legalization was associated with a 40% decrease in arrests in states where marijuana possession penalties had already been softened.

Clearing records

In many states where recreational marijuana passed, residents can get arrests expunged, Armentano said.

In Illinois, which began allowing recreational marijuana use four years ago, police automatically expunge the record of anyone who was arrested as an adult for having or dealing 30 grams of marijuana or less if certain conditions are met.

Since 2018, state courts have expunged or sealed more than 2 million records for marijuana-related cases, according to a study done by Armentano’s advocacy group.

“No one has to reinvent the wheel here,” he said.

The group sponsoring Florida’s marijuana amendment couldn’t include an expungement requirement because the state limits how many provisions can be included in a single ballot initiative, said Morgan Hill, a spokesperson for the group.

“Once adult use recreational marijuana is legal in Florida, we can then work with legislators to expunge criminal records for those adults who were charged with simple possession of marijuana,” Hill said. “Unfortunately, in Florida, you cannot do both in a single ballot measure.”

In the government’s hands

Roz McCarthy, the founder of Minorities for Medical Marijuana, said she has faith that if more than 60% of Floridians vote for legal marijuana use, lawmakers will see “the will of the people” and may do something to help clear the records for people convicted for marijuana possession.

“Legalization gets us to the opportunity to create policy on expungement,” McCarthy said. “It then opens up the door to, how do we repair some of the harms that were present prior to legalization.”

But state lawmakers have been reluctant to change Florida’s laws around marijuana and expunging criminal records.

DeSantis, who opposes recreational use and has said he will campaign against it, has vetoed bills in the past offering Floridians another chance at clearing their record.

Florida is one of the toughest states for someone trying to get records expunged or sealed, according to the Restoration of Rights Project.

Armentano said though more and more people favor legal marijuana or softer penalties for marijuana use, Florida lawmakers have declined to act.

He said that’s partly why groups have pushed for constitutional amendments instead of waiting on lawmakers.

“Democracy really isn’t supposed to work this way,” Armentano said.

Charges dropped

Johnson spent weeks worrying whether she would go to jail for having the gummies. But in mid-June, as she did her mandatory check-in with her bondswoman, Johnson found out the state attorney’s office had chosen not to prosecute.

“They’re dropped, baby,” Johnson said the bondswoman told her. “You’re free.”

Johnson doesn’t know why prosecutors chose not to pursue her case. She was scared to ask further questions, relieved to be done with the whole situation and worried it was some kind of mistake.

She spent $600 toward bond, money she says she would have spent on back-to-school clothes for her kids.

Johnson wonders what could have happened if she had a job that fired her over the arrest — or who would have cared for her children if she were sent to jail. She thinks about her constant worry, as the charges hung over her head, about getting in more trouble.

“I feel it’s so much bigger than it is,” Johnson said. She added, “The money and the anxiety, and it’s just for gummy bears.”