Wednesday, July 15, 2015

High Times, Fiscal Lows: Washington D.C.’s Marijuana Possession Decriminalization Amendment Act Does Not Apply Retroactively

                                                             Introduction

On February 26, 2015, District of Columbia passed the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014 (hereinafter “possession law”). The possession law made the possession of two ounces or less of marijuana legal for adults 21 years or older.  Nonetheless, any federal law enforcement officer in the District can arrest an individual for possession or use of any amount of marijuana because marijuana is still illegal under federal law.  The main point of this new law was to allow individuals to grow a few plants in their home (up to six), use marijuana within their own residence or on private property, and stop making criminals out of those who transfer (not sell) small amounts (one ounce or less) of marijuana to others.  However, the Marijuana Possession Decriminalization Amendment Act (MDA) made the “the possession or transfer without remuneration of marijuana weighing one ounce or less”* a civil violation with a fine of $25.  This amendment strictly prohibits the use of marijuana in public spaces, and it flows in tandem with the possession law which decriminalizes the possession of two ounces or less and the paraphernalia associated with such possession.  Yet recently, the legislature has added a new subsection to the MDA to make clear that the new possession law does not limit any part of the MDA.**  The Emergency Amendment of the MDA further clarifies that “any public place to which the public is invited” includes private clubs**, or simply that clubs cannot provide marijuana to their patrons.

The purpose of both the MDA and the new possession law is to reduce the number of marijuana possession arrests and convictions since the District had the highest percentage of such arrests per capita in the nation.  In ACLU’s June 2013 report, it further noted that 90.9 percent of people arrested in the District for marijuana possession were black, which elucidates the profound racial bias in the application of the District’s marijuana laws.  Therefore, ostensibly, the point is to eliminate or reduce the racial bias, criminalization, and derailment of minority lives and careers with petty possession offenses.  Even though the MDA is meant to prevent future petty offenses, it should also apply retroactively.  The District of Columbia Court of Appeals has recently spoken on the MDA in Washington v. United States, making it clear that the Act does not apply retroactively.  Thus, individuals who were arrested, charged, or convicted before July 17, 2014—when the MDA took effect—will still suffer some collateral consequences of their offenses despite the ability to seal their records under the Record Sealing Amendment.

Background

In Washington v. United States, the appellant was charged on July 5, 2013, with “one count of unlawful possession of marijuana and one count of unlawful possession of drug paraphernalia.”  He was tried and convicted on both counts and sentenced to two concurrent terms of time served.  The main issue here was that “[i]f the police had found [the] appellant’s marijuana one year and thirteen days later, he would have been subject to a $25 fine.”  Instead, he has two convictions on his record.

The court found that the MDA does not apply retroactively because the DC Council did not expressly provide for retroactive application in the act, and the legislative history did not explicitly mention pending prosecutions.  However, the court highlights the Record Sealing for Decriminalized and Legalized Offenses Amendment Act of 2014 (hereinafter “Records Sealing Amendment”), which the judiciary committee designed to “address[] the collateral consequences of marijuana possession arrests and convictions for individuals who were arrested, charged, or convicted before July 17, 2014.  The court concludes that this separate bill supports the inference that the legislature did not intend to apply the MDA retroactively.  Yet the opposite conclusion could be drawn as well.

Analysis

Scholars and practitioners could read both the MDA and the new possession law as intentionally preventing collateral consequences of petty convictions because those convictions would no longer impact the future of individuals.  Yet the D.C. Court of Appeals decided that the Records Sealing Amendment serves that purpose, and the MDA will not apply retroactively.  In the Records Sealing Amendment, the legislature realized that “the decision to use marijuana should not render someone a criminal for life, but under this bill an eligible offender must still seek legal counsel and file a motion to seal his or her record of arrest, charge, or conviction.  So in the end, the legislature is accomplishing little for those still suffering the collateral consequences from offenses now decriminalized because many past offenders cannot afford the assistance of legal counsel or do not even know that such a records sealing bill exists.

The fiscal impact of past marijuana possession offenses will still be felt within a great majority of affected low-income minority communities in the District.  And the true legislative intent of both acts will not be served without some form of retroactive application.  The key take-away here is that practitioners, including the prosecutor’s office, and other agencies, like the Court Services and Offender Supervision Agency (CSOSA), need to help past offenders seal their criminal marijuana possession records to limit the collateral consequences they still suffer.

Written by Miranda Dore
Staffer, Criminal Law Practitioner

*Marijuana Decriminalization Act § 101(a), 61 D.C. Reg. 3482 (2014)
**  Marijuana Possession Decriminalization Clarification Emergency Amendment Act of 2015, 2015 District of Columbia Laws Act 21-19, approved March 26, 2015; D.C. Code § 48-911.01

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