What do you do with a record of something that used to be a crime and no longer is? Eight states have legalized adult (aged 21 and older) personal use of marijuana and legally regulate the production, distribution, and sale of marijuana: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington state. With the legalization of marijuana in California by Proposition 64, residents are legally allowed to possess on their person one ounce (28.5 grams). Driven by the Drug War, the United States current prison population is six to ten times higher than any other country. Although the intent of the war on drugs may have been to target drug smugglers, cartels, and king-pins, according to the FBI’s annual Uniform Crime Reports, of the 1,552,432 arrests for drug law violations in 2012, 82.2% (1,276,099) were for mere possession of a controlled substance. Only 17.8% (276,333) were for the sale or manufacturing of a drug. Nearly half (48.3%) of drug arrests in 2012 were for marijuana, a total of 749,825. Of those, an estimated 658,231 arrests (42.4% of all drug arrests) were for marijuana possession. Similarly, in 2000, a total of 734,497 Americans were arrested for marijuana offenses, of which 646,042 (40.9%) were for possession. California state laws include two categories for crimes of drug possession: simple possession (misdemeanor classification) and possession with the intent to sell (felony classification).
Retroactive ameliorative relief is a law that states if you are sentenced to prison for the commission of a crime, if that crime becomes legal, your sentence is commuted or reduced. The principle of “retroactivity in mitius” defined as less severe criminal laws that eliminate or soften a penalty, apply to offenders who will not be judged by the law in force at the time the offense was committed, but from latter laws when the penalty may be less harsh or have different penalties altogether. Legal appeals may require national courts to try a person who has already been tried by the court to reconsider the punishment if the court now characterizes the criminal act as an ordinary crime and not as a crime against the peace and security of mankind. The principle of retroactivity in mitius is a consequence of the influence of human rights on criminal law. However, the basis of the legal-moral principle of retroactivity in mitius is humanist and contains in itself an injustice in application between similarly situated persons. Specifically, it does not respect the equality of citizens including criminals before the law. Not all persons are sentenced or answer to the same standard for the same violations. Every arrest ends up on a person’s record, whether or not it leads to prosecution and conviction. In minority neighborhoods, young African American men are likely to be targeted by law enforcement officers and the arrests accumulate. Before long they have an extensive “criminal history” that consists only of marijuana misdemeanors and dismissed cases. That criminal history can then influence the severity of punishment for a future offense, however insignificant. Unfortunately, of the 196 countries in the world the United States is one of 22 countries that does not provide retroactive ameliorative relief. This means that people behind bars for marijuana crimes don’t get to go free in states that legalize marijuana. Similarly, criminal records of ex-marijuana offenders are not automatically expunged after marijuana becomes legal at the state level.
After-the-fact amnesty relief is the legal-moral remedy courts must follow to relieve egregious acts and institute justice for all. Federal, State, District, and Criminal court Judges are aware that ordinary people previously arrested on marijuana possession charges cannot find jobs because of their criminal records. The same courts that sentenced these citizens to jails and prisons have read statistics showing a persistent racial bias in enforcement of drug laws where African Americans are nearly four times as likely as Whites to be arrested for marijuana possession. America’s four-decade war on drugs is responsible for many casualties and arguments persist that the criminalization of marijuana has been the most destructive part of that war. The effects can be measured in dollars, billions (3.6 per year) have been wasted yearly in aggressive enforcement tactics of a pointless law. It can be measured in years wasted behind bars or stolen from a child growing up fatherless. You can measure it by quality of life standards where many are damaged and others destroyed by the harsh consequences that follow incarceration for years, felony convictions, a criminal record, and the loss of dignity and self-worth. The United States must establish a relationship between criminal law and human rights that is adamant about the equality of all citizens, void of injustices, and is symbolized not by “blind justice” but of interdependence and harmony. Those citizens who have been treated unfairly in this society, their lives being negatively impacted through a process of maltreatment and punishment must be compensated for the losses they have sustained. The reparation award must be sufficient to put the party who was damaged back into the position the citizen would have been without the fault of another, to include actual economic losses and non-economic losses including educational benefits.