Possession of small amounts of marijuana has now been decriminalized in 17 states and Washington, D.C. But between 2001 and 2010, according to ACLU estimates, more than 7 million people were arrested for marijuana possession. What happens to people convicted of marijuana crimes in those states prior to decriminalization?
The short answer is nothing. Those in prison will stay there, and those who are free will still have criminal records, although some states, like Colorado, have a process for downgrading felonies to misdemeanors.
The state legislatures that tackled marijuana law reform over the past several years stopped short of righting old wrongs. A policy of retroactive ameliorative relief may be part of the solution. It would hardly empty out the prisons, but it would undo some of the damage caused by a now-discredited drug policy and harsh three-strikes sentencing laws aimed at low-level drug offenders. It could make it much easier for people with old convictions to participate in the economy.
Retroactive Ameliorative Relief
The general rule in legal thinking is that statutes take effect only prospectively. For those concerned that an action which is legal today will become illegal in the future, that works just fine. Not so, however, when the reverse is true. Application of a newly liberalized standard to an old crime, known as retroactive ameliorative relief, is guaranteed as a right in all but 22 of the world’s countries. In failing to adopt this approach, the United States finds itself in the uncomfortable company of regimes like South Sudan.
Since the possession and sale of marijuana is still illegal under federal law, retroactive ameliorative relief is not an issue on the national level. It is an option for states that have decriminalized, however.
No Effect on Major Drug Offenses
The relief would be limited to actions that are legal now. Colorado law, for example, now allows someone over the age of 21 to possess up to an ounce of marijuana. Retroactive ameliorative relief would apply only to convictions prior to 2012 involving individuals over the age of 21 with an ounce or less, not to 19-year olds or someone with five pounds and the intent to distribute.
Where an individual was sentenced under a three-strikes law and one of the predicate offenses was the kind of possession now legal under state law, retroactive ameliorative relief could make a big difference.
The Hardest Cases
Life For Pot has assembled a list and is organizing clemency petitions for non-violent marijuana offenders who are serving life sentences. These are heartbreaking stories, including one involving 80-year old, wheelchair-bound Antonio Bascaro, who has already served 35 years in prison for smuggling. Jeff Mizansky, held in state prison in Missouri, is serving life without possibility of parole under a three-strikes law. The last involved little more than driving an acquaintance to a motel where the acquaintance purchased marijuana.
In these situations, where the law at issue is federal or the state has not yet decriminalized the precise offense, clemency is the only option after all appeals have been exhausted.
Why does the task of righting old wrongs matter in a business and investment context? It would be hard to draw a direct line, but the marijuana industry is inextricably entangled with social justice issues. This is true not just because of the history of legalization and allies in reform including the Drug Policy Alliance and Marijuana Policy Project, both of whom also focus on social justice issues. It is also true in the context of medical developments and the potential for becoming attractive to socially responsible investors. The plight of seven million people is something very hard to ignore, in any context.