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Learn | 09.23.2021

What Happens To People In Prison When Weed Gets Legalized?

With the ever-increasing debate and discussion surrounding the legalization or decriminalization of cannabis, there’s a simple question many people have. What happens to all the people in jail or prison when weed gets legalized?

The legalization of recreational and medicinal cannabis has led to many things. A significant part of this relates to marketing, production, innovation, and investigation of cannabis for consumption. But there’s a huge part that comes along, and it’s the whole legal conversation will greatly vary, mostly due to the many differences there are when we compare the states and territories. 

Stick around because I will go through some key aspects and topics that deeply relate to this question. By the end of this, you might have a better understanding of how to approach the question because there isn’t just one answer.

A Federal System: More Variables Than Constants

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We have to consider that when it comes to legal matters in the United States, it can get quite tricky. By being a federal system, powers are divided between a federal level and a state or local level. That means that each of the fifty states, and even some local authorities, can have varying views or stances on the matter. 

Every state has a different approach to marijuana, and as such, there are different rules and protocols around everything related to weed. There’s also another factor to throw in, and some states have other cannabic legislation in some cities and counties.

With a huge expenditure on enforcement of cannabis prohibition, time is a factor until the rest of the states decide to see the benefits of legalization. There’s also a lot of money being spent on keeping people behind bars for crimes they committed but are now not an offense.

Lastly, and to continue looking forward to federal legalization, the cannabis industry is enormous and a great money maker. Many states are seeing the economic benefits of legalizing, and it’s perhaps time to see what’s better, continuous expenditure or actual income from the industry.

What’s The Federal View

Cannabis remains illegal, and under Title 21 of the United States Code, the Controlled Substances Act, classified as a Schedule 1 hallucinogenic drug, meaning the government believes there’s a high potential for its abuse and does not currently approve medicinal use. 

This means that the CSA takes precedence over state or local law, so even if you abide by your state’s law, you might violate federal law. This comes into play rarely, but the federal government is interested in prosecuting large-scale traffickers and those with probable links to organized crime. 

Another huge thing that comes into play, federal law is applicable on federal property, so do not get caught smoking a spliff or rolling a sick blunt at a federal building or land. Why? Because simply put, you’d be in for federal prosecution of cannabis-related offenses.

The Difference In Race or Ethnicity

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There’s a huge spotlight on the discrimination and varying force of the law when it comes to the judicialization of people for cannabis-related crimes and offenses. Statistically, white people have it way easier on them or are even let go with a slap on the wrist for these offenses, while the majority of people arrested or processed are Latinos and POC.

This is a key factor in the discussion because most of the people that are incarcerated due to cannabis-related offenses are minorities and underrepresented. The war on drugs has an implicit bias in it, with some people getting life for selling drugs, while others get five years for murder.

Retroactive vs Prospective

Law is a complicated matter. It is ever-evolving, expanding, and quite frankly a bit scary. This, in my opinion, because it carries power, as such those in power or looking to get some, might be inclined to use law for lobby or their benefit. 

When a new law is made, it generally has prospective effects, which means it will be applicable in the future or from the date it has passed all the processes to become a law. Sometimes, laws can have retroactive power. This means it will go back and be effective from before its creation. 

As a general rule, laws shall have only a prospective effect, thus they will not be applied retroactively, but will be applicable to pending cases and disputes. This would mean that as a general rule a new law does not go back in time and change anything, so in our case, people would still stay in prison. 

Although some states are already starting to enforce these new laws retroactively, most are deciding to stick to new cases only, or haven’t spoken much about it at all. And, to be fair, it’s absolutely horrid when penal law, law enforcement, and convictions get pulled into the political lobby.

What Are Some Of The Things Going On?

Some states have decided to apply the law retroactively in cannabis-related crimes and offenses, but it is not the general rule. Many other states have held their ground, and either because marijuana has not been decriminalized or because there are only prospective effects of the legalization, people will stay behind bars. 

There’s been a promise of release and expungement of records in states like California for some cannabis-related offenses, but not much action. On top of that, the process turned out to be gruesome and complicated to navigate, so most people are just not even trying. 

Colorado has agreed to allow some offenders to appeal their convictions, and some may see their sentences modified. While other states like Virginia and Georgia are sticking to the general normative, no retroactive effects.

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While there’s general legalization at a state or local level, the federal law has not changed, and cannabis remains illegal. As such, and without any way of knowing when or if there will be federal legalization of marijuana at all, there are still many crimes and offenses that are severely punished and may be enforced even if your state allows pot. 

The general principle is that laws have a prospective effect. As such, people who committed offenses that are no longer punishable by the law will still have committed a crime back then and will remain incarcerated. However, some states are applying retroactivity to their new cannabis laws.

The best thing to do is to check your state’s laws, see the whole business, and cross your fingers that the process is efficient and easy to navigate. Fortunately, many non-profits and foundations out there seek justice for those in prison unfairly or with a disproportionate sanction. 

It may be a disappointing answer, but the United States is one of the 22 countries in the world that does not guarantee retroactive ameliorative relief or changes/relaxation of sentences. As a matter of fact, there’s no guarantee that there would be expungement from records.

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