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Do (Should) State Marijuana Reforms Apply Retroactively?

Posted by on Saturday, December 2, 2017 in News, Updates.

Suppose that Danica violates her state’s marijuana prohibition. If the state later repeals that prohibition, does (and should) the repeal apply retroactively to Danica’s offense?

To date, most states have failed to explicitly address this question. But California and Colorado have recently begun offering relief for some marijuana offenses that pre-date their respective reforms.

California’s recreational marijuana law (Proposition 64) provides broader and more generous relief. In relevant part, it states:

(a) A person currently serving a sentence for a conviction. . . who would not have been guilty of an offense or who would have been guilty of a lesser offense under [Proposition 64] had that Act been in effect at the time of the offense may petition [the trial court for resentencing or dismissal of the sentence] . . .
(b) Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition . . . unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.
. . .
(e) A person who has completed his or her sentence for a conviction . . . who would not have been guilty of an offense or who would have been guilty of a lesser offense under [Proposition 64] had that Act been in effect at the time of the offense, may file an application before the trial court . . . to have the conviction dismissed and sealed because the prior conviction is now legally invalid or
redesignated as a misdemeanor or infraction . . .
(f) The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction . . .

Cal Health & Safety section 11361.8. As reported by the Marshall Project, thousands of people have already petitioned the California courts to reduce their sentences or modify their records for past marijuana offenses that Proposition 64 subsequently either repealed or downgraded.

Colorado has created more limited avenues for relief. In January 2017, the Colorado Supreme Court held that Amendment 64 implicitly applies to some marijuana offenses that pre-date passage of the law in 2012. Before Colorado v. Boyd, it wasn’t obvious whether Amendment 64 should be applied retroactively (for reasons aptly explained by the Boyd dissent). Nonetheless, the Boyd decision is quite limited: It only applies to “cases where there was a nonfinal conviction for possession of less than one ounce of marijuana and where there was a pending right to appeal . . . at the time the Amendment became effective.” Boyd slip op. p. 7. Proposition 64, by contrast, does not impose any timeline on relief (and as noted below, it is not limited to simple possession).

Later in 2017, the Colorado legislature passed a separate measure that enables individuals to petition the state courts to seal certain records of conviction for past marijuana offenses. Again, however, the relief is limited to “misdemeanor offense for the use or possession of marijuana”, and then only so long as the petitioner “establishes by a preponderance of the evidence that the offense would not have been a criminal offense if the act occurred on or after December 10, 2012” (the effective date of Amendment 64). Colo. Rev. Stat. Ann. § 24-72-710(1)-(2). (2017). By comparison, Proposition 64 applies not only to the offense of simple possession, but also to more serious offenses involving the cultivation, transportation, and possession with the intent to distribute marijuana. And Proposition 64 also establishes an automatic presumption that makes it easier for petitioners to prove they qualify for relief.

The remaining states (as far as I am aware) have not specifically addressed the retroactive application of their reforms, although a few have adopted very limited forms of relief, like ignoring some prior marijuana offenses for purposes of awarding marijuana business licenses (see book pages 447-451). And I suppose governors could always pardon past convictions for marijuana offenses (as they could for other state convictions) and prosecutors voluntarily drop pending charges (as a few local prosecutors have done in reform states).

Let me make two brief observations about retroactive application of marijuana reforms:

  1. Applying reforms retroactively can be difficult, practically speaking

Consider Danica in the hypo above. Suppose her crime of conviction was the cultivation of marijuana. Judged under reforms like Proposition 64 and Amendment 64, her cultivation might have been legal. But it depends on various facts – like how many plants of varying stages of maturity she possessed – that can be difficult to establish later (especially for very old crimes). This difficulty means there will be errors in the application of retroactive relief. How the state allocates the burden of proof will determine who (the state or the petitioner) bears the risk of those errors.

The Drug Policy Alliance has written some terrific guidance on how to apply Proposition 64’s relief provisions. See here  (infographic that provides a good starting point), here, and here. Two California judges have also posted a helpful memorandum that address a host of legal issues raised by the relief provisions.

2. It’s not obvious that states necessarily should apply their reforms retroactively

On the one hand, favoring retroactivity, it seems strange to punish someone for behavior the state no longer considers criminal. Furthermore, punishing past marijuana offenses costs money and may preserve – at least temporarily – some of the racial disparities stemming from past enforcement of marijuana prohibitions (when those offenders are still in the criminal justice system).

One the other hand, states arguably have a retributive justification for continuing to punish marijuana offenses that predate reforms. After all, the individual who breaks the rules remains blameworthy, even if lawmakers later decide to change those rules. And as highlighted by Sam Kamin and Joel Werner here, past convictions do not always capture the full range of an individual’s actual transgressions. They point out that a defendant (like Danica in my hypothetical) might have pled guilty to a marijuana charge, but may have also committed more serious charges (perhaps involving other drugs or non-drug crimes) that got dropped as part of a plea bargain with prosecutors. In such situations (which can be difficulty to discern, for reasons noted above), clearing a prior marijuana conviction wouldn’t necessarily be warranted, even if a state thinks individuals are not blameworthy for their past marijuana crimes.

I’m sure there is much more to say on this issue, but these are my initial thoughts. I will be putting these materials into a new chapter on Legal Transitions for a supplement to the book, and possibly into a new law review article before then.

[Updated 12/3]

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