As many as 10,000 people could see the state of Colorado overturn their old marijuana convictions after an appeals court ruled the state must apply aspects of its year-old marijuana law retroactively.
Though the judges used narrow language to explain their reasoning, they left open the door for lower courts to toss out the convictions of almost everyone convicted of crimes declared legal under Amendment 64, the pot legalization initiative passed by voters in 2012.
“I think there are thousands of people who could potentially have their convictions overturned,” said Sean McAllister, a lawyer who specializes in cannabis cases. McAllister said he represents several clients who hope to overturn their previous convictions.
Prosecutors aren’t so sure the ruling will lead to much change. Lower courts would have to read the judges’ ruling broadly, and that isn’t likely to happen, said Tom Raynes, executive director of the Colorado District Attorneys’ Council.
“I think that’s a tortured application of the holding,” Raynes said.
The ruling stemmed from the 2011 conviction of a woman for actions that are now legal under Amendment 64.
When voters in Colorado passed that initiative, they became one of the first two states to legalize recreational pot, along with Washington State. More are expected to follow suit in coming years, with Alaska scheduled to vote on the issue in August.
But states across the country have prison systems overcrowded with marijuana offenders whose crimes are now legal, or may be declared legal one day soon. Advocates and lawyers are floating proposals elsewhere to expunge criminal records and free incarcerated cannabis offenders.
In Colorado, the court said in its ruling that “a defendant is entitled to the benefits of amendatory legislation that mitigates the penalties for crimes when he files a motion for postconviction relief.”
But that only applies to an ex-con with a pending appeal or a remaining time window in which to file an appeal. In those cases, chances of success are good, McAllister said. Usually, however, the window has long since closed, leaving convicted offenders out of luck.
Petty pot crimes, for example, have just a six-month appeal deadline in Colorado. So a toker charged immediately before weed went legal in November 2012 had only until the spring of 2013 to file an appeal – long before the court’s ruling gave that appeal hope of success.
A Coloradan charged with a marijuana misdemeanor just before legalization might have a chance at overturning her conviction, since those crimes have an 18-month deadline. But there are very few cases that fit in that category.
There is another argument defendants with old convictions could make, one that could help thousands more, at least in theory. Under state law, defendants can appeal their convictions at any time, even after the relevant deadlines, if they can demonstrate “justifiable excuse or excusable neglect.
“That’s exactly what we have here,” said defense attorney Jeff Gard. “Anybody who was walking down the street didn’t know they had the opportunity to appeal until this ruling came out.”