Emerging Marijuana Legalization and Retroactive Ameliorative Relief

By: Michelle F Kaplin-Zhebrak

Recreational marijuana legalization and decriminalization is an emerging phenomenon in today’s modern society. Colorado was the first state to legalize marijuana recreationally in November of 2012.[1]Since then nine other states have also legalized marijuana, while fifteen additional states have decriminalized the use of recreational marijuana.[2]Notwithstanding, many of these state laws have failed to explicitly address whether or how these laws will apply retroactively to those who have already been convicted of such crimes before they became legal.[3]

Retroactive ameliorative relief refers to the process of a law that is changed to benefit offenders applying retroactively to past offenders.[4]The United States is one of the very few countries–along with Pakistan, Oman and South Sudan–that does not automatically recognize retroactive ameliorative relief. This means that a law must explicitly provide a retroactive ameliorative relief clause in order for the law to apply retroactively.[5]As a result of this reality, it is imperative that each state’s emerging marijuana laws include a retroactive ameliorative relief clause.

The justifications for providing retroactive ameliorative relief in emerging marijuana laws are moral as well as economic. Providing retroactive ameliorative relief to those currently and formerly incarcerated for marijuana-related crimes would be in the best interest for our society in order to reduce the inherent racial disparities in our criminal justice system and allow African Americans and other minorities the opportunity to benefit from the growing marijuana industry on the same level as whites. Not only would this benefit our society from a moral perspective, the economic effects of such a change would be substantial as well—It would also save substantial amounts of our tax dollars that have been wasted in enforcing marijuana laws in a way that is racially biased.[6]

[1]See, e.g.Vincent Vitiello, Marijuana Legalization, Racial Disparity, and the Hope for Reform, 23 Lewis & Clark L. Rev. 790, 808.

[2]Recreational Weed States—States That Have Legalized Weed 2019, World Population Review (October 7, 2019), http://worldpopulationreview.com/states/recreational-weed-states/.

[3]Vanderbilt University, Do (Should) State Marijuana Reforms Apply Retroactively?, Marijuana Law, Policy, and Authority (December 2, 2017), https://my.vanderbilt.edu/marijuanalaw/2017/12/do-should-state-marijuana-reforms-apply-retroactively/.

[4]Imagining a Canada After Marijuana Legalization, Evans, Bragnolo & Sullivan LLP (January 18, 2017), http://www.ebslawyers.com/tag/retroactive-ameliorative-relief/.

[5]Don’t Just Legalize Marijuana, Free Prior Offenders, Los Angeles Times (January 16, 2014), https://www.latimes.com/opinion/la-xpm-2014-jan-16-la-ol-legalize-marijuana-free-prior-offenders-20140115-story.html.

[6]SeeKatherine Schroeder, Marijuana and Racism: Bearing the Blunt of the Problem, Canna Law Blog (March 20, 2015), https://www.cannalawblog.com/marijuana-and-racism-bearing-the-blunt-of-the-problem/.