Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Thursday, March 13, 2014

Colorado's Amendment 64 given retroactive effect by appeals court

The interwebs are abuzz with news today that some pre-Amendment 64 marijuana offenders may be able to get their possession convictions wiped away.  The appellant, Brandi Jessica Russell, was convicted of possessing less than one ounce of marijuana in August 2011 based on conduct that "occurred twenty months beforeAmendment 64's effective date."

In Colorado, courts presume a change in the law has prospective application only, absent an express intent to the contrary.  This presumption can be overcome, however, in some circumstances.  Specifically: "Section 18-1-410(1)(f)(I), C.R.S. 2013, permits a defendant to receive postconviction relief if 'there has been significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.'"

The Court held that "Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for 'a significant change in the law' and eliminates and thus mitigates the penalties for persons convicted of engaging in such conduct."  In reaching this decision, the Court relied on a 1970s-era precedent that reduced some marijuana offenses from serious felonies to misdemeanors.  The earlier case seems to be directly on point.  Though I do not know anything about this area of the law, the Court's discussion leaves the impression that its decision is on pretty firm ground and unlikely to be overturned in the event the government appeals. 

The decision does not appear to open the door for everyone who has a Colorado marijuana possession.  The opinion notes that the 1970s case applies to defendants "on direct appeal" and the holding on this issue concludes: "Because defendant’s convictions were pending appeal when Amendment 64 became effective on December 10, 2012, her convictions for possession of marijuana concentrate and less than one ounce of marijuana must be reversed and vacated." 

Similarly, because the decision is based on Colorado state law, I suspect it is unlikely to have any significant impact in other states (e.g., Washington), unless those states have similar retroactivity statutes.  

Though the decision is limited (both inside Colorado and in its likely impact outside the state), it will give Coloradans with marijuana possession convictions on direct appeal the opportunity to get their record (at least for that charge) cleared.  The case also raises the question of whether state legislatures may want to consider going further and permitting those with older convictions to seek expungement.

You can read the decision here (PDF).

http://lawprofessors.typepad.com/marijuana_law/2014/03/colorados-amendment-64-given-retroactive-effect-by-appeal-court.html

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