Colorado Overturns A Past Marijuana Conviction

In a prospectively landmark decision, Colorado’s second-highest court retroactively threw out a woman’s 2011 convictions for marijuana offenses that are now legal.

The woman, Brandi Jessica Russell, was appealing her convictions for possessing less than an ounce of marijuana and possessing marijuana concentrate, among other charges, when Colorado voters passed Amendment 64 in 2012.

The judges noted Amendment 64 didn’t include a provision for throwing out convictions imposed before its passage, which are typical for any potentially retroactive cases. However, they said state law allows a defendant to receive post-conviction relief “if there has been a significant change in the law.”

The judges, in explanation of their decision cited People v. Bloom, a case from 1978 in which “the defendant was convicted of possession of marijuana under a 1963 statute that provided for imprisonment from two to fifteen years; the trial court sentenced him to five to twelve years. However, after he had committed the offense, the legislature amended the statute to reduce the offense to a misdemeanor with a maximum sentence of one year. The court held that the defendant, on direct appeal, was entitled to the benefits of the amendatory legislation.”

“Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for a significant change in the law,” the judges ruled.

While Russell’s attorney Brian Emerson praised the decision and noted “it may be a way for some people to remove a black mark from their record”, it is important to note this ruling may not apply to anyone with a past marijuana offense in Colorado at this time. The judges made this ruling specifically in light of the fact that the original conviction was pending appeal on Dec. 10, 2012 when Amendment 64 was passed.

Colorado Attorney General John Suthers said in a statement he disagrees with the conclusion and plans to appeal. He stated “Well-established retroactivity law in Colorado indicates that statutory changes are prospective only unless the General Assembly or the voters have clearly indicated otherwise.”