WA SECTF - Work Group - Non-Violent Offense Policy and Home Grow - Public Meeting
(July 11, 2022) - Summary

WA SECTF - Work Group - Non-Violent Offense Policy and Home Grow - Social Equity Applicant Background Checks
[ Event Details ]

Following introductions, members contemplated how to improve criminal history checks for social equity applicants and prepared to advise regulators to disregard drug offenses broadly.

Here are some observations from the Monday July 11th Washington State Legislative Task Force on Social Equity in Cannabis Non-Violent Offense Policy and Home Grow Work Group (WA SECTF - Work Group - Non-Violent Offense Policy and Home Grow) Public Meeting.

My top 4 takeaways:

  • Michelle Merriweather provided a review of changes to the Washington State Liquor and Cannabis Board (WSLCB) criminal history background checks of license applicants and renewing licensees (audio - 7m). 
    • Making clear that they would cover home grow policy at the work group’s next meeting, Merriweather commented that input on non-violent offense policies would be presented to the full task force at their August 23rd meeting.
    • She read from the WSLCB Criminal History rule change background that “Rule changes to the personal criminal history requirements (WAC 314-55-040) for cannabis licensing were implemented on October 3, 2021. These changes expanded conviction allowances, removed the self-reporting requirement during initial licensure, and clarified the criminal history review process. These changes were enacted to remove any unintended barriers to licensure and to create transparency in the criminal history review process.”
    • Merriweather went over specific changes around reporting, assessment by staff, the removal of a point system for offenses, and the threshold review process. The former point system for convictions and nondisclosure of offenses had been replaced by a more general system of classifying convictions over a timeframe followed by a closer review at a set threshold if necessary, she stated. Merriweather said the system was centered on determining if an applicant’s “criminal history presents a current public safety concern by evaluating the nature of the crime and if there is a pattern of disregard for laws and rules.” She then shared the threshold review criteria:
      • “(a) Time since the conviction, or pending offenses;
      • (b) Nature and specific circumstances of the offense;
      • (c) Relationship of the offense or incident to the nature of the work performed;
      • (d) Number of offenses or incidents;
      • (e) If criminal, any relevant evidence of rehabilitation, such as information about compliance with conditions of parole or probation, including orders of no contact with victims and witnesses, and the individuals conduct and experience since the time of the offense; and
      • (f) Any other relevant information, including information submitted by the applicant or licensee, or requested by the board.”
    • “However, now it is our job as a task force to evaluate” changes and consider whether there was a need for “additional modifications,” Merriweather concluded.
  • In a broad ranging conversation, work group members offered questions and comments around conviction types, checks on the threshold review process, violent offenses, and what power the task force would have “to move the needle to fix things."
    • Berkley started the discussion with an open request for the group to consider the differences in the criminal history process at WSLCB, “how has equity benefited,” and whether there were accountability measures “for the manager that is doing the threshold review (audio - 1m).
      • Bamba conveyed that the agency process looked “at conviction type” but not the specific offense. Beyond whether a crime was a felony or misdemeanor, she relayed that “time consideration” was a key component of whether an application or renewal received a threshold review by staff (audio - 1m).
      • Berkley confirmed that this process was used for all drug offense convictions, and not only cannabis convictions (audio - <1m).
    • Next, Berkley sought a better understanding of the accountability measures during a threshold review as she had concerns about “bias.” Bamba noted the review allowed for the applicant to provide an additional statement or information which may provide “the full picture” and if the manager of the review advised the board to deny an application “then our Director of Licensing [Becky Smith] would also be there to review the file.” Denials included the right to appeal a decision “through the Administrative Procedures Act, and go through that process,” she mentioned. Bamba added that among “over 17,000 criminal history record reports” WSLCB staff had conducted, only 43 applicants had been denied solely based on those reviews (audio - 1m).
    • With the application review process, Rosellison wondered whether there was “a rubric” which aimed to ensure treatment “to the same standards" and review of conviction history through “equal lenses.” Bamba was uncertain of a document like that, but agreed that such a rubric could be suggested to agency staff by the task force (audio - 1m).
    • Kingsbury turned to felonies, establishing that they weren’t “segregated” when looking at conviction history. He speculated that licensing staffers might assess convictions differently and asked if there were “controls” within the agency or process that would mitigate this subjectivity. Bamba replied that licensing staff submitted threshold reviews to a “Compliance and Adjudications Manager" (audio - 2m). 
      • Berkley followed up to learn more about how violent felonies might be reviewed. Bamba said the rules were focused on a determination of whether a threshold review was warranted and that no offense guaranteed an application was “automatically denied.” However, as a process looking at public safety and “a pattern of disregard for law,” she stated that “usually pretty egregious convictions” and repeat offenses were weighted against an application (audio - 1m).
    • Rosellison asked how staff involved in this process were trained, to which Bamba responded there was “a training manual in place” that she might be able to share with workgroup members (audio - 1m).
    • Berkley was curious if the board had hired someone as the Social Equity Program Manager. Bamba communicated that this manager would help social equity applicants complete “the regulatory process” but wasn’t certain they’d been given a role in the criminal history or threshold review processes. She subsequently reported that this manager wasn’t a new hire (audio - 1m). 
    • Kingsbury asked how the criteria for the threshold review process was determined. Bamba was uncertain, but understood it occurred “during our rule development” (audio - 1m).
    • Slaughter wondered how a conviction for cannabis possession would be assessed by WSLCB processes. Bamba expected that would be a misdemeanor if someone was in excess of legal limits on cannabis, but it could depend on whether other factors or offenses were alleged. Feeling this was “a little disconnected" given that possession was legal, Slaughter was skeptical such a conviction should “warrant any sort of review at all.” Bamba noted the threshold timeframe featured “a sunset clause for possession of cannabis charges” that meant possession convictions weren’t applicable “after three years” (audio - 2m).
      • Kingsbury called attention to the fact that cultivating a single cannabis plant absent a medical cannabis authorization was a class C felony (audio - 1m).
    • Sherman believed the “conversation about drug-related charges” was making him think that “simple possession” and some of the charges discussed so far shouldn’t be included in a criminal history threshold assessment. “Part of the…goal of this task force,” he offered, was to “remedy the negative effects of the war on drugs, not to relitigate them.” Sherman observed that policing had been “explicitly racialized for decades” and to “meaningfully move forward,” legislators and the governor should be advised that “these sorts of charges are not considered in this” process. Moreover, he felt that “white-collar crimes" like “fraud” tended to be misdemeanors and class C felonies but those offenses were, “in my opinion, significantly more potentially harmful to the public safety.” Sherman argued white-collar offenders were less impacted by the conviction than those convicted of other crimes. Pointing out that “proximity” to weapons sometimes compounded an offense, he wanted a review process that weighed “the nature of convictions and how they would impact” safety in a cannabis space, where he felt “white-collar offenses could be more serious” than some types of crimes generally regarded as “worse” by officials (audio - 3m).
      • Rosellison concurred, suggesting “all drug-related offenses don’t count” and should “be taken off” the WSLCB criminal history review. She asked why the rule changes at WSLCB were changed for all applicants if the aim was to help equity applicants “versus all the privileged White people out there.” Merriweather expressed support for both Sherman and Rosellison’s suggestions. Slaughter gave her understanding that rule changes by WSLCB didn’t have direct legislative mandates but social equity rules required specific legislative approval, whereas changes impacting “everyone” could be undertaken by the board at any time. Rosellison articulated a view that agency leaders liked “to take the path of least resistance” but thought it was within WSLCB “purview to do this just for specific people” (audio - 3m).
      • Unequal treatment by law enforcement officers based on race had been documented in both the frequency of police stops, as well as language and tone in communicating with the public. Find out more from a June 2021 advisory memorandum of the Oklahoma Advisory Committee to the U.S. Commission on Civil Rights (US CCR) covering “Racial Disparities in Policing.”
      • Read a March 15th policy brief from the Washington Advisory Committee published by US CCR Civil Rights Analyst Brooke Peery on “Barriers to Accountability for Law Enforcement Officers’ Use of Excessive Force.”
    • Berkley inquired about arrests for home growing since passage of Initiative 502.
      • Kingsbury stated there "absolutely" had been arrests and offered the example of “a couple of patients who had their paperwork in Pacific County” who were arrested and “had their homes and gardens "ripped apart." He remarked that “small scale home grows in Grant County” had been a “common” target of local law enforcement action.
      • Kingsbury had been compiling a spreadsheet of arrests which he claimed showed a “great disparity in racial application.” For cannabis grows with “six plants or less,” African Americans were “five times more likely to be arrested than if you were White for the same activity.” Saying he’d “dug deep” into the distinctions, Kingsbury mentioned that Caucasian people arrested for cannabis cultivation “grow 15 plants or more” while “Asians tend to be involved with…larger-scale grows” according to data pulled from the National Incident-Based Reporting System (NIBRS) hosted by the Federal Bureau of Investigation (FBI). He added that the Washington Association of Sheriffs and Police Chiefs (WASPC) had more “limited” data in this area, but he was confident that there’d “been hundreds of arrests…for smaller home grows" since passage of I-502 (audio - 4m). 
      • Robbins told the group that he’d been visited “last year” following a house fire not “related to my home grow” and that firemen responding “didn’t seem to have an issue” when they saw his grow. He explained there “wasn’t much of an issue” when police investigated and determined that his grow was lawful (audio - 1m).
    • Bennett wanted to know “what kind of power do we have to move the needle to fix things?" Berkley said their input was presented to the full task force and if accepted would become part of a report to lawmakers, which was intended “to get legislators to…pick up the cause and put bills forward.” Bennett then asked if lawmakers had done that, and Berkley asserted they had passed legislation to establish and expand WA SECTF. Merriweather said “once it is in the hands of the policymakers, it is also our responsibility to make sure that we’re advocating” for the recommendations of the task force (audio - 2m).
    • Slaughter encouraged the group to hone their recommendations, but several members commented that they had yet to see requested information on the WSLCB “playbook” around criminal history checks as well as the staff manager who would handle threshold reviews of applications. Slaughter promised to forward that information after the meeting once it had been furnished by WSLCB staff (audio - 4m).
    • Rosellison claimed that when some cannabis applications failed the previous point system, “we’ve seen where they literally crossed out the name and wrote ‘consultant’ instead of ‘owner.’” She said that a proxy who could pass a background check was substituted, “then this other person is still running the business” because they had a “loophole around the licensing.” Rosellison wished to understand agency policy and training to reduce the ability of “skirting around the rules" (audio - 1m).
    • Kingsbury echoed Sherman’s point on the need to remove drug convictions from consideration and evaluating whether financial crimes were “more of a threat to public safety." He was further unnerved with “subjectivity” in the threshold process and agreed that formal guidance around how “these crimes are in, these crimes are out” would be helpful. Kingsbury felt the criminal justice system had been “overcharging for drug crimes for decades” and that growing a single cannabis plant posed no “threat to public safety at all” (audio - 2m).
    • Beginning to draft their feedback on non-violent offense policy, Slaughter had follow up questions for Rosellison on how a “rubric” for equity applicants compared with the rule changes which had been outlined. Rosellison recommended offering more detail than the existing rules to increase the objectivity of assessments, while admitting “it really just depends on how much we think the LCB is gonna listen to the recommendations” (audio - 7m).
      • Slaughter noted process changes around applicants’ disclosure of offenses along with making clear in rule that there was “further review and decision” making in the system. Rosellison said the “type and timeframe of convictions” considered by the board needed more development and that a WA SECTF recommendation should make the process objective enough that an applicant “could literally add up [their] points before submitting your application.”
      • Rosellison then asked about the 43 denied applications out of 17,000 reported by Bamba. She understood many people “didn’t even apply for positions because they were worried their criminal history would keep them from it” and asked if it was possible transparency could be improved so that applicants understood their chances “prior to applying.” Bamba said WAC ​​314-55-040(5) included “threshold review evaluation criteria” and that regulators strove to be more transparent in their process.
    • WSLCB Director of Policy and External Affairs Justin Nordhorn joined the conversation to relay his understanding that the criminal history review system had been too opaque, and that applicants hadn’t bothered applying. His concern was that a rubric could “confine you into areas that you don’t necessarily want” and limit the ability of staff to assess “the totality” of circumstances (audio - 9m).
      • For Nordhorn, the new process allowed an appeal of a denial and let WSLCB staff consider “what crimes are associated with what you’ll be doing as a business owner.” He argued that timeframes for considering convictions were chosen to reflect sentencing guidelines as “class A and B felonies are typically your more violent offenses,” or serious fraud offenses. According to Nordhorn, limiting the timeframe to include less serious class C felony convictions along with a more forgiving process of disclosing convictions left fewer "automatic disqualifiers." 
      • Involvement “with money laundering or fraud" was a big concern for regulators, Nordhorn attested, whereas “a fishing violation" might not be determined to increase someone’s risk as a cannabis licensee. He noted that criminal offenses appeared in a variety of Revised Code of Washington (RCW) statutes making a complete list difficult. Rosellison asked whether a complete list existed, and Nordhorn responded that he could share links to RCW titles he knew would have offenses outlined but some crimes had additional assessments around intent, negligence, or other risks. Rosellison welcomed any links about the offenses licensing staff usually encountered, believing that there could be a catchall point about “anything not listed” in their recommended rubric.
      • Nordhorn commented that agency officials tried not to discourage applicants, and that staff were especially mindful of the need “to be proactive" before beginning an equity application window.
    • Considering Nordhorn’s input, Kingsbury thought a “more manageable way to approach a rubric” was for conviction types to be excluded from review instead of specifying on an offense-by-offense basis (audio - 1m).
    • Slaughter wondered if a manager denying a threshold review had to put in writing “the reasons why” outside of the full appeals process. Bamba replied that applicants were given “a statement of intent” laying out the reasons for denial. Slaughter’s impression had been that Rosellison and other members were interested in “a rubric on when someone should be denied” with more particulars “than that written statement” would typically give an applicant (audio - 1m). 
    • Firming up the wording of their recommendation to WA SECTF, Slaughter wondered what offenses should be exempted from instigating the denial of an applicant in threshold review (audio - 5m).
      • Berkley wondered if any class B or C felonies “carry more weight” in criminal history assessments. Slaughter conveyed that all felony types were treated similarly “as long as they’re within” the set timeframe.
      • Kingsbury pointed out that some domestic violence offenses were treated as misdemeanors “and growing six plants at home is a class C felony.” He further found that growing hundreds of cannabis plants was the same type of felony even as this was “clearly not the same activity.” Kingsbury felt that growing cannabis in large quantities or with criminal intent “invariably [resulted in] other violations.” These convictions denoted the seriousness of a crime but would allow regulators to ignore “drug-related charges” and focus on “more nefarious stuff” during a criminal history review.
    • Berkley asked if they had the ability to continue conferring after the meeting via email to refine their recommendation language as she felt it “blends into the home grow question, too.” As people were still being charged for relatively small cannabis grows, she wondered if they might return to non-violent offense policy during the work group meeting on home grow. Slaughter encouraged all work group members to email their proposals to staff and that they could vote on them at their next meeting (audio - 1m).
    • Sherman quickly brought up a request for any WSLCB documentation on the threshold review process they hadn’t already seen. Slaughter confirmed this would include the “training module” for licensing staff engaged in application review (audio - 1m).
  • WA SECTF Manager Anzhane Slaughter went over upcoming meetings and steps remaining for the work group and wider task force (audio - 4m).
    • She reported that on July 26th the Regulation of Cannabis Production Work Group would meet to finalize feedback to WA SECTF, which was scheduled to next convene on August 23rd.
    • Slaughter stated that the work group would reconvene during “the first or second week of August” to focus on home cannabis cultivation recommendations.
    • The last two WA SECTF meetings of 2022 would be dedicated to finalizing a report to lawmakers and state agencies due by December 9th, she added, encouraging anyone interested in the final stretch of their work to request to be included in updates via email.
    • On July 18th, Representative Melanie Morgan tendered her resignation as the WA SECTF legislative co-chair, effective immediately, a move she claimed was in response to “my recent appointments to two new committees” which were “taking me in new directions.” She believed the group had “done great work, thus far, to create equity and inclusion in the cannabis industry… I am thankful for [WA SECTF] staff’s support in ensuring that we were prepared and well-resourced to lead meetings and engage with the community” and remained “confident that the Task Force will continue to carry out its’ mission.”

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