Don’t just legalize marijuana, free prior offenders

David Marlow, right, helps a customer, who smells a strain of marijuana before buying it, at the crowded sales counter inside a marijuana retail store in Denver on Jan. 1.
(Brennan Linsley / Associated Press)

With pot now legally for sale in Colorado, and Washington state gearing up to follow suit, marijuana legalization activists across the country are pushing hard to replicate these political successes in other states. Voters in Massachusetts could ratify legalized marijuana as early as 2016.

This is undoubtedly a sign of progress. Our nation has capriciously squandered far too many precious national resources combating a green weed that makes people feel good.

As welcome as a more widespread regulated marijuana industry would be, however, one thing that no one seems to be considering is what to do with those already convicted of marijuana crimes. It’s estimated that 750,000 people are arrested every year on marijuana-related charges and up to 40,000 are currently in prison for marijuana crimes.


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When Colorado legalized marijuana via its 2012 ballot initiative, it made no stipulation about the fate of those already convicted of marijuana crimes. If you were sitting in prison for selling pot, you’re still there. If you were ever convicted of a felony marijuana charge, it’s still on your record — and your prospects of getting a decent job are likely still daunting.

The decision by activists not to include leniency for previous offenders in the Colorado marijuana ballot initiative (even if it would have been good policy) made perfect political sense. It’s far easier to sell voters on the financial benefits of creating a lucrative new marijuana industry than it is to persuade them to open up the prison gates and set convicts free.

In most of the world, however, no such political calculus is required.

According to a 2012 report by the Human Rights and Criminal Sentencing Reform Project for the University of San Francisco School of Law, the United States is one of only 22 countries that doesn’t guarantee what’s called “retroactive ameliorative relief” in sentencing. Which means that when a law such as one legalizing marijuana is passed in America, those already convicted of marijuana crimes don’t automatically have their sentences relaxed. This puts us in the company of such bastions of social justice as Pakistan, Oman and South Sudan.

If Germany were to legalize marijuana, on the other hand, those convicted of weed crimes would see their sentences commuted, according to the USF report.


With 55% of Americans supporting marijuana legalization, the tea leaves aren’t exactly difficult to read: Legalized marijuana in America is a matter of when, not if.

But if we’ve wised up to the fact that marijuana prohibition is either immoral, wasteful or both, then we also need to recognize the moral and financial imperative to ease the punishments on those already convicted. Because America does not guarantee retroactive ameliorative relief in sentencing, this won’t happen without a fight.

As more and more states attempt to amend their harsh marijuana laws, the issue of what to do with the previously convicted needs to be addressed by advocates and policymakers. As support for legalizing marijuana soars, surely the majority of us can agree that wasting the criminal justice system’s time and money by continuing to penalize those convicted under the old, misguided drug laws is equally bad policy.


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Matthew Fleischer is a Los Angeles-based freelance journalist. Follow him on Twitter @MatteFleischer.