Marijuana Laws They Are a Changin’: Options for Those Convicted Before Decriminalization

Marijuana Laws

Marijuana laws have changed to the point where certain drug offences no longer carry the harsh penalties they once used to. This means that instead of being faced with a possible jail term when caught with small quantities of marijuana, the penalties for a person charged with possession generally consist of a small fine. Furthermore, it also means that a charge of possession in a decriminalization state would generally not lead to an arrest or any of the other punishments and procedures applied to people charged with a criminal offense.

It should be made clear that when discussing marijuana laws, decriminalization is not the same as legalization. To decriminalize something means that a state repealed or amended its laws to make certain acts criminal, but no longer subject to prosecution. In the marijuana context, this means individuals caught with small amounts of marijuana for personal consumption won’t be prosecuted and won’t subsequently receive a criminal record or a jail sentence. In many states, possession of small amounts of marijuana is treated like a minor traffic violation. States that have decriminalized marijuana include Alaska, California, New York, Minnesota, North Carolina, Oregon, and much of the Northeast.

The impact of removing jail as a sentencing option for cannabis possession has generally been a positive one. Despite fears that use would increase because of decriminalization, there is little evidence to show that this happened in any of the states that have decriminalized small quantities of marijuana. Also, reductions in the costs of enforcement and courts have meant that these funds can be spent elsewhere.

Marijuana Laws: What to Do If Busted Before Marijuana Decriminalization

Before reform, people were arrested, convicted, and sentenced to jail (sometimes for lengthy amounts of time) for simple possession. Though marijuana laws have drastically changed, sometimes allowing adults to possess a small amount of marijuana, those already convicted are still in prison serving sentences to this very day.

If you are one of those unfortunate individuals or know someone who was convicted before marijuana possession became decriminalized, or even legal, you are probably wondering if there is any legal recourse that could help.

Marijuana Laws: Ex Post Facto Laws Are Prohibited

Under Article I, Section 9 of the U.S. Constitution, ex post facto laws are prohibited.

An ex post facto law is “a law that retroactively alters a defendant’s right, especially by criminalization and imposing punishment for an act that was not criminal or punishable at the time it was committed, but increasing the severity of a crime … by increasing the punishment for a crime … or by taking away from the protections afforded the defendant.”

So, in other words, laws cannot be applied retroactively to convict you of a crime that wasn’t a crime when you committed it.

Marijuana Laws: Retroactive Amelioration Relief

Similarly, a new law decriminalizing a crime cannot be used to decrease or end a conviction that occurred prior to the new law’s passage, unless the law has a retroactive amelioration clause.

Take for example Proposition 36, in which California amended the three strikes law to impose a life sentence only when a third felony conviction is serious or violent. Before the amendment, many were sentenced to life in prison for non-violent crimes, like shoplifting. Though the change wouldn’t lessen their sentence, Proposition 36 also allowed courts to re-sentence offenders currently serving life sentences for non-violent third strike convictions, allowing for retroactive ameliorative relief.

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.

Marijuana Laws: Applying for a Pardon

A pardon is one form of clemency—a privilege that is granted to certain suspects or convicts that either lessens or removes their criminal liability. Clemency is typically issued by the head executive of a jurisdiction (e.g., mayor, governor, or president), and a pardon, which often forgives all criminal liability for a person’s wrongdoing, is considered the highest form of clemency.

Unlike California’s Proposition 36, Nebraska’s laws decriminalizing marijuana possession does not have any retroactive amelioration clauses—so instead, current convicts may be able to get relief by applying for a pardon from the state’s governor, which can be a very hard process and is rarely successful.

Contact Omaha Drug Attorney Daniel Stockmann

Applying for a pardon should never be attempted without first consulting an experienced criminal defense attorney like Daniel Stockmann. The accomplished legal team at Stockmann Law has specialized in drug cases for over 20 years, and has a track record of winning.

To find out more about the prospect of a pardon, or to set up a free and completely confidential case evaluation, call our law offices at (844) 545-3022 today.  We will always keep your information private and give you the information you need to make the best decision.