Weed Is Legal, but Prior Offenders Won’t Be Let Off the Hook

Laws change, but punishments—up to and including the death penalty—remain the same for prisoners convicted prior to legislative reform.
Colorado may have legalized marijuana, but for those already convicted, the law offers no relief. (Photo: Reuters)
Jan 2, 2013· 2 MIN READ
Matt Fleischer is a TakePart contributor who was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

In the past 25 years, 210,000 marijuana-related arrests have been made in the state of Colorado alone. Of that number, more than 50,000 took place between 2006 and 2010. So now that Colorado has officially legalized the commercial sale and consumption of marijuana, how many of those people arrested for previous weed crimes will be let out of prison? Or, if they’ve already served their time, how many will have their marijuana crimes expunged from their records, making it easier to get a job?

The answer: Zero on all counts.

In American criminal justice, so goes the thinking, marijuana possession or distribution was against the law when the crime was committed. The law is the law. Whether or not the old law was unpopular or unjust is immaterial.

MORE: The High Road: What's Next for America's Marijuana Laws?

Though there’s a certain cruel logic to this viewpoint, from a global perspective it is an extreme outlier. The United States is one of the only countries in the world that doesn’t guarantee what’s called “retroactive ameliorative relief” in sentencing. Meaning, when a law is passed to ease or eliminate punishments for a specific crime, those already convicted of that crime don’t necessarily receive the same relaxation or cessation of their sentence.

“The only other countries [other than the U.S.] that do this are places like Myanmar, Oman, Pakistan, South Sudan, and a handful of countries in the Caribbean. Even Russia provides this right.”

“The United States is one of only 22 countries that doesn’t guarantee retroactive ameliorative relief in sentencing,” says Amanda Solter, Project Director of Human Rights and Criminal Sentencing Reform Project for the University of San Francisco School of Law. “The only other countries that do this are places like Myanmar, Oman, Pakistan, South Sudan, and a handful of countries in the Caribbean. Even Russia provides this right.”

Though post-conviction relief varies from state-to-state in the U.S., amelioration typically needs to be explicitly specified by lawmakers for it to take effect. In a political system paralyzed by the need of candidates to appear tough on crime, this rarely happens. The Fair Sentencing Act, for instance, which passed the U.S. Congress in 2010, eases penalties for the personal possession of crack cocaine. However, even though this law was explicitly crafted to right the wrong of absurdly high sentences for crack possession in comparison with other drugs, lawmakers made no effort to ease the sentences of those already convicted.

It gets worse.

“Connecticut repealed the death penalty and didn’t make it retroactive,” says Solter. “New Mexico has done the same. Two people there are currently on Death Row. It seems obvious on some level, and yet that right doesn’t exist here in the United States. It’s the world’s worst punishment, then you decide it doesn’t apply retroactively?

“South Africa, on the other hand, abolished the death penalty and made it retroactive for 300 to 400 people on Death Row. Russia did the same in the ’90s and commuted the sentences of roughly 700 people. These are tangible examples of where other countries are putting [retroactive ameliorative relief] into practice.”

There are some signs of hope. California’s recently passed Proposition 36 gives non-violent offenders sentenced to life in prison under the state’s rigorous “Three Strikes” law the chance to petition the judicial system for ameliorative relief.

Many state and county prosecutors in both Colorado and Washington—the Evergreen State also legalized marijuana in the 2012 election—have announced they plan to drop all current investigations into marijuana crimes, citing the intent of the states’ new laws.

For those already convicted, however, marijuana legalization will bring no relief.

Victory in the fight to legalize marijuana appears to be a matter of when, not if. The effects of weed prohibition on the criminal justice system, however, will linger on far longer.

Are you for or against retroactive ameliorative relief? Or should the process be evaluated on a case-by-case basis? Reason it out in COMMENTS.