Until recently, marijuana has been criminalized in every state, and continues to be illegal at the federal level today. Colorado’s Amendment 64 and Washington’s Initiative 502 made possession of one ounce of marijuana legal for persons twenty-one or older. However, both laws failed to comment on whether these laws would apply retroactively. A recent Colorado Court of Appeals decision held that Amendment 64 is a significant change of law allowing, in the interests of justice, retroactive application.
Brandi Russell was convicted of possession of less than an ounce of marijuana, possession of marijuana concentrate, and possession of methamphetamine twenty months before Amendment 64 became effective. The court noted that although Amendment 64 does not expressly state the intent to apply retroactively, Colorado’s statutory provision for post-conviction remedy applies. Colorado allows post-conviction remedy when “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 found that Amendment 64 constituted a significant change in the law, the interests of justice supported retroactive application of the law, and vacated Russell’s charges relating to marijuana.
Colorado is not the only state with statutory provisions for post-conviction remedy, in fact most states have similar statutes. Colorado’s statute only permits post-conviction remedy if the conviction is not final (can still be appealed). Washington’s statute has a slight variation with potentially giant implication. In Washington, a post-conviction remedy can be sought within one year after the conviction becomes final. However, this one year limit does not apply when “[t]here has been a significant change in the law . . . . which is material to the conviction, . . . . and . . . . a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.” In contrast, Massachusetts’ statute for post-conviction relief states that a new trial may be granted at any time if it appears that justice was not done, but makes no reference to a significant change in the law. Maryland, which recently passed a bill to decriminalize marijuana, has a substantially more broad approach to post-conviction review. Maryland’s statute states only that “[t]he court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.”
The implications of Colorado v. Russell are far-reaching. The most recent Uniform Crime Reports data estimates a total of 750,000 marijuana possession arrests in 2012. As states introduce mitigation statutes and amendments, practitioners should refer to their state’s laws for post-conviction review, should there be a chance to vacate a client’s conviction or reduce a jail sentence. The impact would likely be greater on states recently changing from criminalization to decriminalization, as opposed to states changing from decriminalization to legalization. To illustrate, Massachusetts, which decriminalized possession of an ounce or less of marijuana as of January, 2009, would likely have no convictions to vacate should the state legalize possession of the same amount. In comparison, Maryland reported 24,137 arrests for marijuana possession in 2012. With the new decriminalization structure, as well as Maryland’s broad post-conviction review statute, it is likely that many of those convicted have a valid argument to vacate their convictions.
While post-conviction review may congest courts, a slow justice is better than no justice at all. Additionally, despite the initial court congestion resulting from post-conviction review, there would be a net decrease in court congestion. For example, Maryland will no longer be making over 24,000 arrests for marijuana possession each year. Over time, this negates any congestion that may result from those seeking post-conviction review. The state could further minimize court congestion by systematically deciding to vacate convictions that meet certain requirements (e.g. vacating all non-violent cases involving only possession).
It is therefore imperative that practitioners know and understand their state’s use of post-conviction review. As states head in the direction of legalization, it is likely that many clients previously convicted will have a chance to have their convictions vacated. As states like Maryland decriminalize marijuana, it is important, in the interests of justice, that these convictions are appealed and reviewed, and hopefully vacated to reflect the views of the people.
Staffer, Criminal Law Practitioner