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What happens to prisoners after the end of the war on weed?
October 31, 2012 5:52 PM   Subscribe

What happens to people locked up for weed in a post legalization state? Amendment 64 in Colorado and Initiative 502 in Washington state both seem to have a decent possibility of passing, and would make the posession and consumption of marijuana legal for adults. What would happent to people jailed in either state for possession or distribution of marijuana if either of these pass?

Seems even more pointless to keep these people locked up when it's officially legal, is there any provisions or guidelines about what will happen to them?
posted by anonymous to Law & Government (11 answers total) 2 users marked this as a favorite
 
read this regarding Washington:
http://www.theweedblog.com/deconstructing-i-502-opposition-in-summary/
posted by roboton666 at 6:11 PM on October 31, 2012


In a purely textbook situation, they would stay locked up as laws are enforced at the time of sentencing and are not retroactively enforced i.e. pardoning those currently locked up or convicted of marijuana crime. So a crime committed when it was illegal, it is still a crime even if the action becomes legal at a later time.

As for what would really happen? Who knows, there are too many factors that make it difficult to predict what is going to happen i.e. federal response, internal politics, etc.
posted by lpcxa0 at 6:26 PM on October 31, 2012 [1 favorite]


Your question is basically asking if the initiatives in Washington and Colorado will have an ex post facto effect. Ex post facto, in latin, means "from after the action" or "after the fact". Pragmatically, an ex post facto law retroactively changes the legal consequences of an act performed before the law was enacted.

Unfortunately, for all those jailed in Washington and Colorado, Article I, Section 9, Clause 3 of the United States Constitution specifically bars both Congress and the states from passing ex post facto criminal laws (limited to criminal by the Supreme Court). So, the fact that marijuana possession could become legal in Washington Colorado, does not exonerate those who chose to possess marijuana when the law said they couldn't.
posted by Mr. X at 6:28 PM on October 31, 2012 [5 favorites]


If this happened to my clients, I assume avenues for relief would include pardons, habeas, and state-specific relief such as a motion to modify the judgment, etc. But I don't think there would be any guarantee that individuals already convicted would receive relief. The best type of attorney to answer this question would be one who practices post conviction relief or other extraordinary remedies.
posted by Happydaz at 6:31 PM on October 31, 2012 [2 favorites]


Neither the Colorado nor the Washington initiative contain retroactivity language, so neither one is intending to make the legal provisions retroactive.

People would be able to make a very good case for state pardons, for sure, but there's nothing automatic about the initiatives passing that would erase previous convictions.
posted by gingerbeer at 6:40 PM on October 31, 2012


Mr. X, that clause in the constitution means you can't make something retroactively illegal after it happens. I don't think it applies to making something retroactively legal after it happens.
posted by Chocolate Pickle at 6:56 PM on October 31, 2012 [5 favorites]


Chocolate Pickle-

Took a closer look. You're right. In Calder v Bull, 3 U.S. 386 (seminal case on the issue), the court specifically stated that a law that "mollifies" a criminal act is not ex post facto. The court states that a law whose purpose is to "excuse acts which were unlawful...before committed... is retrospective"

So... without researching the matter any further I would think that means that the initiatives would have to specifically excuse the prior criminal acts (while simultaneously making possession legal) for those who have been previously convicted to be exonerated.
posted by Mr. X at 7:08 PM on October 31, 2012 [2 favorites]


Related: California's Prop 36, which amends the three strikes law, specifically has language to allow people currently serving life sentences under the law to apply for resentencing.
posted by animalrainbow at 7:41 PM on October 31, 2012


I don't know of any cases offhand, but I suspect there is ample precedent from the Repeal of Prohibition. There were doubtless people in jail at the time of Repeal for alcohol-related offenses, so if you wanted to do some digging that's where I'd start. Unfortunately a few quick searches in various databases doesn't seem to turn up very much, and searching on Google just finds a lot of people asking the question and nobody answering it — perhaps there just weren't many people actually in jail for simple alcohol possession by the time of Repeal...?

Here's an interesting paper on retroactive laws and their limits in the state of Minnesota. (Not especially germane as Minnesota is not one of the states considering legalization to my knowledge, but many of the Constitutional issues at play there would apply to other jurisdictions.) However, it mostly deals with ex post facto laws that abridge rights or define new crimes, rather than eliminate them. Mostly just of interest if you're into this sort of thing.
posted by Kadin2048 at 8:34 PM on October 31, 2012


Unfortunately, for all those jailed in Washington and Colorado, Article I, Section 9, Clause 3 of the United States Constitution specifically bars both Congress and the states from passing ex post facto criminal laws

This is wrong. Or it's right, but you're misapplying the law. Congress can't criminalize something and then punish someone afterwards. But it can certainly go the other way. The courts are far less concerned with people getting out of jail "unfairly" than they are people getting sent to jail that way.
posted by valkyryn at 3:43 AM on November 1, 2012 [1 favorite]


perhaps there just weren't many people actually in jail for simple alcohol possession by the time of Repeal...?

Nobody was in jail for possession, that was never criminalized -- only manufacture, transport and sales of alcohol were forbidden, during prohibition.
posted by Rash at 8:37 AM on November 1, 2012


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