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Last year over 660,000 people in the U.S. were arrested for a marijuana law violation. Of those arrests, over 600,000 were for possession only. Within that same period, Vermont and Michigan both passed laws to legalize marijuana, joining a growing number of states that have either legalized or decriminalized recreational cannabis. In 2019, there were three additions to the list of states that have decriminalized marijuana (New Mexico, North Dakota, and Hawaii) bringing the total to 15, and Illinois joined the list of states to legalize the non-medical use of cannabis, bringing the total to eleven.

As states decriminalize and legalize marijuana, it means would-be offenders can use recreational pot without fear of arrest in many states, and even embrace new business opportunities in the emerging legal cannabis market in some. But what are the implications for past marijuana offenders who were convicted before the new laws were enacted in their states? Some of them even missing marijuana decriminalization or legalization by a matter of days.

Overwhelmingly, new marijuana laws apply to future but not past offenders, and they are creating a growing divide in justice between those marred with permanent criminal records and those now able to freely use and even sell recreational cannabis. For many past offenders, drug charges from marijuana possession or sale continue to have ruinous effects on their lives, from workforce discrimination to hefty prison sentences. The continued struggles of many past offenders, despite marijuana prohibitions being lifted in their states, raises the legal question of whether new marijuana laws should be retroactively applied to ameliorate past convictions.

In his article “Weeding Out Injustice: Amnesty for Past Pot Offenders,” forthcoming in Hastings Constitutional Law Quarterly, Mitchell Crusto, the Henry F. Bonura Jr. Distinguished Professor of Law at Loyola University New Orleans College of Law, argues that states must take steps to correct the imbalance in justice created by marijuana laws that do not apply to past offenders. In the below interview, he discusses his article and why he believes amnesty for past pot offenders is a constitutional right.

Q&A with Mitchell Crusto:

Why is amnesty for past pot offenders needed?

MC: Past pot offenders, especially in states that have legalized marijuana, deserve even-handed justice. That is, all of them suffer from the stigma of having a criminal record for activities that are no longer criminal if committed today. More tragically, some past offenders are serving life without the possibility of parole, due to pot crimes. I argue that these past offenders are constitutionally entitled to the retroactive application of the new laws. As a result, I believe amnesty is the practical solution, as the right to retroactive application of new sentencing would require remediation of a large number of people over a long period of time.

You argue that retroactivity for past offenders is a matter of constitutional right. Can you explain?

MC: Certainly, in a nutshell, fundamental constitutional principles, including the Ex Post Facto Clauses and the due process jurisprudence of the U.S. Supreme Court mandate retroactive relief where there is a substantive change in the criminal standard of culpability. I believe that in states that have legalized marijuana, such a substantive change in criminal culpability for present and future offenders must apply retroactively.

What are the potential costs and benefits of amnesty to past pot offenders and to society?

MC: Let’s start with the benefits of “pot amnesty” to society. First and foremost, it would return millions of past offenders to full citizenship status, that means it will redress the collateral damage of having a criminal record. This change would allow such offenders to fully participate in the workplace, to receive government benefits, and to receive travel and immigration protection. Second, society as a whole would benefit from the availability of talent in the labor pool, the reduced costs of incarceration, and the elimination of administrative costs of maintaining criminal records. On the flip side, there could be administrative costs to formally expunge criminal records, which I believe to be minimal. Another most serious concern is that some pot offenders may have committed more serious crimes that were pled out as pot crimes. Some critics may argue that broad amnesty, without reference to individual cases, might put serious criminals back on the streets.

I argue that states that have legalized marijuana have no choice but to provide retroactive relief to past offenders, for behavior that today is not deemed illegal. With amnesty, I believe there would be minimal administrative costs, as the burden would shift to the state to show why amnesty would not apply to a particular individual, perhaps due to past criminal history or violent behavior. Still, if there are administrative costs, I propose that the state dedicate funds from the increased revenue it receives from the now legalized marijuana industry.

Who, if anyone, would be opposed to such amnesty?

MC: Hardly anyone would oppose pot amnesty if they have any sense of equal treatment under the law or understand the inherent injustices of the War on Drugs. Some prosecutors might show a minor concern over offenders who might show on the record as past pot offenders where they actually were charged with more serious crimes.

Can you elaborate on former Justice Sandra Day O’Connor’s concept of even-handed justice and how it applies to marijuana legalization?

MC: Justice O’Connor, who was a leading decision on the retroactivity of Supreme Court decisions introduced the concept of “even-handed justice.” While she did not elaborate on its meaning, I argue that what she was referring to is the inherent fairness of using the same standard to judge past and present behavior, relative to criminal culpability. If one accepts the premise that when the Supreme Court expresses its opinion relative to a substantive right, such as the fundamental right to marry, such a right existed prior to the Court’s decision and so must apply retroactively.