Yesterday, the Colorado Court of Appeals ruled that Amendment 64 applies retroactively to defendants whose actions would have been legal under the measure and were appealing convictions when it became law. A64 co-author Brian Vicente has called the decision a huge victory, while Colorado Attorney General John Suthers suggests that it is largely inconsequential, although he'll probably appeal it anyhow. Who's right? One pot advocate sides with Suthers but wishes a pox on both his and Vicente's houses.
First, the decision itself, which flows from charges against Brandi Jessica Russell. In March 2010, as detailed in the ruling (on view below), Russell and her husband brought their infant son to a hospital in Granby after the child's father "heard a pop" and the infant began to cry. Doctors soon discovered that the child had a spiral fracture on his left femur -- and began to suspect possible child abuse.
Russell was subsequently subjected to a drug test that detected methamphetamine and marijuana in her urine. The finding prompted a search of her home that turned up drug paraphernalia, plus amounts of marijuana, marijuana concentrate and meth.
Before long, Russell was charged with child abuse, plus possession of one gram or less of marijuana, marijuana concentrate and meth -- and while she was subsequently acquitted on the child-abuse beef, she was found guilty of the drug offenses. But Russell appealed, applying separate arguments for the meth and marijuana convictions. Her theory on the latter, according to the document, is that "Amendment 64 should be applied retroactively and that her convictions for possession of marijuana concentrate and possession of less than one ounce of marijuana should be vacated."
In the end, the court let the meth conviction stand. But the marijuana matters were tossed based on earlier precedent and a Colorado statute that "permits a defendant to receive post-conviction relief if 'there has been significant change in the law, applied to the applicant's conviction or sentence, allowing in the interest of justice retroactive application of the changed legal standard.'"
In post-ruling interviews, Vicente trumpeted the decision while asserting that Colorado prosecuted as many as 9,000 marijuana cases a year -- a claim made frequently during the Amendment 64 campaign. He also suggested that the ruling could "affect hundreds of people who were given jail terms for petty marijuana offenses."
This last supposition is expressly dismissed by attorney general Suthers. In a statement, he maintains that "the impact of this ruling is very limited given that possession of an ounce or less of marijuana was already a petty offense subject to a $100 fine. No one could be incarcerated for such a petty offense. The possession of marijuana concentrate was a Class Five felony until August of 2010 at which time possession of less than three ounces of marijuana concentrate was reduced to a Class One misdemeanor. Amendment 64 made possession of less than an ounce of marijuana concentrate lawful under Colorado law. It is highly unlikely that there is anyone incarcerated at this time strictly for possession of marijuana concentrate of less than one ounce."
However, Suthers's office adds that "we will likely appeal because of the implications this ruling may have on other non-marijuana cases. Well-established retroactivity law in Colorado indicates that statutory changes are prospective only unless the General Assembly or the voters have clearly indicated an intent to require such retroactive application. That was not the case with Amendment 64."
Marijuana advocate Kathleen Chippi has her own take. In a response sent to Westword, she argues that Vicente "is either clueless or still marketing how wonderful A64 is even when the courts make these rulings that show how little A64 changed. His statement doesn't even make sense. No one in Colorado went to jail for a two ounces or less since 1975. Penalty: $100 ticket. How do hundreds of people end up in jail over a one-ounce petty offense? They don't."
But if Chippi agrees with Suthers on this point, she's aghast at the notion of a possible appeal. "Why waste the time and money?" she asks, adding, "It affects almost no one expect the girl whose case they ruled on, and she had additional non-pot charges."
Here's the complete Court of Appeals ruling.
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More from our Marijuana archive circa March 13: "Recreational marijuana smoking a firing offense? Colorado Bar Association says 'yes.'"