Letting Perfect Be the Enemy of Good: Exploring the Opposition to Amendment 3 in Missouri

In just over two weeks, Missouri voters will head to polls for the midterm elections. In addition to voting for federal, state, and, in some cases, local leaders, Missouri voters will weigh in on four constitutional amendments. Three of these amendments were proposed by the Missouri legislature, and one, Amendment 3, was proposed by the people through our initiative petition process. 

Amendment 3 seeks to legalize the recreational use of marijuana in the state of Missouri. Empower Missouri has been a proud supporter of Amendment 3, also known as Legal Missouri, since the initiative was announced in Fall 2021.  We support this proposal for two primary reasons.  First, we know that criminal charges for marijuana possession and distribution are primarily levied on poor communities and communities of color. A Black person is 2.6 more likely than a white person to be arrested for marijuana possession in Missouri, despite comparable marijuana usage rates. As an organization who advocates for those living in poverty across the state, we believe that legalizing marijuana is a critical step towards dismantling our system of mass incarceration. 

Second, we strongly support the expungement of past marijuana offenses from the records of tens of thousands of Missourians. As we have discussed repeatedly in our Clean Slate campaign, the collateral consequences of a criminal record, even for something as simple as marijuana possession, ruin lives.  Individuals with a criminal record struggle to secure gainful employment (yes, even in this job market), safe housing, and full parental rights. If Missouri is going to legalize marijuana, it is imperative that the consequences be removed for those who were previously prosecuted for activities that would now be legal. 

Over the last month, opposition has begun to emerge for Amendment 3, and some of our allies have questioned why we are continuing to support the initiative. In today’s Weekly Perspective, we will look at the biggest messages against Amendment 3, and why Empower Missouri still supports this initiative despite arguments against its passage. 

The first set of arguments against passing Amendment 3 deal with the licensing provisions to be able to legally sell marijuana for recreational use in Missouri.  The Legal Missouri campaign has been heavily funded by current medical marijuana producers and sellers in Missouri, who will be automatically eligible to participate in recreational sales as well. There has been a lot of criticism about the ways that these licenses were awarded by the state. I’m going to cut straight to the chase– we don’t have a dog in this particular fight. The licensing issue does not have anti-poverty implications one way or the other, and I’m not going to spend time breaking it down or addressing it here. I will note that there is a very progressive provision for licensing microbusinesses in the proposal, awarding new microbusiness licenses only to folks who fall into one of the following five groups: 1) have had past low income & net worth, 2) disabled veterans, 3) directly impacted by criminalization of marijuana in the past, 4) reside in areas identified to be below federal poverty, with high unemployment rates, or with high incarceration rates, or 5) graduated from unaccredited school district. We believe this provision helps the Amendment 3 language be one of the most equitable marijuana propositions in the country.

The second set of arguments against Amendment 3 are from folks who argue that this language shouldn’t be enshrined in the Constitution. We don’t disagree. Ideally, the Constitution should be reserved for the fundamental principles according to which a state agrees to be governed.  Unfortunately, there are two other truths that must be acknowledged here. First, the Missouri legislature often fails to pass legislation desired by the vast majority of Missourians, including legalizing recreational marijuana. There was a wonderful legislative proposal to legalize recreational marijuana from Republican Representative Ron Hicks last session with bipartisan support; it did not even make it to the House floor. 

Second, when Missouri has previously passed new statutes via the initiative petition process, the legislature has simply overturned the ones that they don’t like. This has forced community advocates to write their proposals as constitutional amendments, which cannot be overturned by the legislature without a vote of the people. However, this does not mean that adjustments can’t be made.  The legislature has demonstrated as recently as 2020 that they absolutely have the power to change constitutional amendments via the “Dirty Missouri” campaign.  Missouri voters passed “Clean Missouri,” a constitutional amendment consisting of a number of good governance reforms. In 2020, the legislature put a proposal on the ballot to repeal sections of this legislation; voters sided with the legislature, and the constitutional language was amended.  So, if the legislature wishes to tweak some of the provisions in Amendment 3, they can absolutely file legislation to make those changes and put it to a vote of the people in 2024. They would also have broad discretion to make smaller changes without a vote. They could add more licenses or alter possession limits because they are written as minimums, not maximums.

The third and final set of arguments have to do with the criminalization and expungement provisions. Since these are the most directly related to the reasons why we are choosing to support the proposal, I’ll address each of them below: 

Concern: Amendment 3 does not allow unlimited possession of marijuana. 

Response: This is true. Under Amendment 3, possession of marijuana for recreational purposes is capped at 3 oz. This is a lot of marijuana. (As a side note for the uninitiated, the typical joint contains 0.01 oz to 0.03 oz. That works out to mean 3 oz of marijuana is the equivalent of anywhere between 100 and 300 joints.) In fact, if Amendment 3 passes, Missouri will have the second highest possession limit in the country. There is not a single state without a possession limit; putting a limit in place was critical to this passing in Missouri. In addition, 90% of arrests for marijuana possession in Missouri are for less than one ounce of marijuana, meaning that the vast majority of possession in Missouri will no longer be criminalized. 

Concern: Amendment 3 enshrines new criminal penalties related to marijuana possession in the Missouri Constitution. 

Response: This is true, but the vast majority of these penalties are infractions, punishable by fines ranging from $100 to $250. For example, individuals under 21 caught with marijuana will be fined $100 and have the marijuana confiscated. They can attend four hours of drug education in lieu of paying a fine. Higher fines only kick in when someone possesses more than the legal limit of 3 ounces. This is still only an infraction or misdemeanor, with no jail or prison time, and is punishable by a fine not to exceed $1,000, only on a third or subsequent offense. Fines can also be paid down with community service. 

In addition, the smell of marijuana will no longer be grounds for law enforcement to conduct a search of a person, home, or vehicle– a change with seriously positive consequences for communities plagued by over-policing. It would still be illegal to use marijuana in public, so our neighbors should not be concerned about marijuana smoke invading movie theaters or restaurants. 

Concern: Individuals with past marijuana convictions would need to petition for expungement. 

Response: This is NOT true. This is a blatant falsehood being shared by some opponents of this legislation. Empower Missouri supports Amendment 3 because, if passed, it would require the state to expunge all marijuana offenses (with exceptions for violent offenses, offenses that occur while operating a motor vehicle, or offenses involving distribution to a minor) automatically, with no petition required. The state must expunge eligible misdemeanor offenses within six months and felony convictions within a year. Also, marijuana use will no longer be able to be used as grounds for revoking a person’s probation or parole.

The only individuals who need to petition for expungement are those who are currently incarcerated or under supervision (probation or parole). There is not, nor has there ever been, a mechanism to automatically release individuals from prison or supervision when a change in the law makes their previous offense no longer illegal.  This is why a petition process is necessary in these cases to vacate the sentence, order immediate release, and expunge all related records. Amendment 3 requires that the Public Defender’s Office prepare and make readily available a form that can be filed pro se (without a lawyer) for this purpose, and it orders the courts to process the forms in order of the severity of the original offense– misdemeanors within three months, class E felonies within six months, and class D felonies within nine months. 

A very small number of individuals convicted of Class A, B, and C felonies related to marijuana would have to finish their sentences before they could petition for expungement. I have personally scoured Missouri’s criminal code and have found only four marijuana-related offenses that are classified as Class A, B, or C felonies: 

1. Distribution of more than 35 grams of marijuana in protected location (i.e. schools, parks, public housing) is a Class A felony
2. Growing more than 35 grams of marijuana is a Class C felony
3. Trafficking more than 30 kilograms (66 lbs) of marijuana is a Class B felony
4. Trafficking more than 100 kilograms (220 lbs) of marijuana is a Class A felony

The latter two items on this list would still be illegal under Amendment 3; it makes sense to us that folks would have to finish their sentence.  In a perfect world, we’d like to see folks in the first two categories be eligible to be released and expunged without finishing their sentences. But public policy is rarely, if ever, perfect. 

Writing public policy is an art, not a science. It involves intensive research and compromise. I believe that the drafter of this proposal wrote a great policy. Is it perfect? No. Are there things we would change if we could wave a magic wand? Yes. But, on a whole, this legislation will have tremendously positive consequences for Missourians. We’re proud to support it, and come Election Day, we hope that you will too.

** October 24 CORRECTION: When we posted this originally on Friday, October 21, 2022, we stated: Higher fines only kick in when someone possesses more than the double legal limit (more than 6 oz). This was incorrect. The penalties described in the bill are for possession of between three and six ounces of marijuana. The amendment does not speak to what happens beyond six ounces of possession, so any existing statutes would apply in that case.