In 2012, Colorado legislators made legal history by passing a law change (Amendment 64) that effectively legalized recreational marijuana use. While supporters around the world celebrated the development, the change in law left thousands of people in Colorado with a pre-legalization conviction. If you or someone you love has a pre-legalization marijuana conviction, you may wonder whether you can do anything about it.
How the American legal system works
According to the American legal system, convictions apply according to the law that was in effect when the offender committed the offense. What's more, even if the law changes to de-criminalize the offense, any conviction made normally remains in place.
In this respect, the United States is quite unusual. In fact, the United States is one of only 22 countries in the world that does not apply retroactive ameliorative relief to criminal sentences when the law changes. Indeed, even when legislators make changes specifically to deal with unnecessarily high sentences (such as the 2010 Fair Sentencing Act), existing offenders do not automatically benefit.
The issue offenders face
In a 25-year period, Colorado police made 250,000 marijuana-related arrests. A fifth of those arrests took place between 2006 and 2010, leaving thousands of people with convictions at the point when the State relaxed the law.
A criminal record can make many aspects of your life difficult. Even if you only have a misdemeanor on your record, a marijuana offense can make it hard for you to get a job, a house or an education. Given that you must declare these convictions on a job or housing application, many support groups believe that the Colorado legal system should expunge these convictions and allow pre-legalization offenders to benefit from the change in law.
Of course, to complicate things further, Amendment 64 did not quash all convictions. For example, the change in law means that it is still illegal to carry four or more ounces of the drug. As such, any decision to expunge convictions would have to apply on a case-by-case basis.
A decision by the Colorado appeals court may offer hope to many people who were eligible to appeal their conviction when the change in legislation took place. The appeals court ruled that defendants could benefit from changes in legislation if they were still eligible for post-conviction relief when the law change took effect.
For example, Colorado law allows a six-month appeal window after a petty conviction. As such, while marijuana possession was illegal in November 2012, you would potentially have up to six months to appeal the conviction. As such, if you had appealed in January 2013, it's possible that the court would have upheld your appeal, even though your offense was illegal when you committed it.
What's more Colorado State law allows you to appeal your conviction at any time if you can show "justifiable excuse or excusable neglect" to explain why you did not appeal against your conviction in the original window of opportunity. Many defendants would argue that they did not know they could do this until some time after the appeal window closed.
Other possible changes
Another proposed legislative change could finally end the problem that pre-legalization marijuana offenders face in Colorado. Two senators have sponsored a proposal to seal the records of anybody convicted for a marijuana offense prior to Amendment 64. This change in the law would deal with the issue offenders face when applying for a job, as they would no longer have to declare the sealed criminal conviction.
That aside, in any case, defendants should remember that the authorities are unlikely to proactively look for people who could benefit from these changes in legislation, and you would almost certainly need to make some type of formal application to the court. As such, you should contact an experienced marijuana defense attorney for further advice and information about your options.Share