(Craig F. Walker, The Denver Post)

Editorial: Making pot amendment retroactive is disturbing

By The Denver Post Editorial Board

The Colorado Court of Appeals issued a surprising ruling last week applying Amendment 64 retroactively to a 2011 marijuana conviction, which it threw out.

The case is important not because of the particular reversal, since the public obviously doesn’t want people punished for possessing small amounts of marijuana. Nor is the decision likely to clog the courts with thousands of demands for reversals, since the defendant’s case was unusual in that it was on appeal when Amendment 64 was approved.

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But the retroactive application of the amendment is disturbing — and it’s good to see state Attorney General John Suthers saying he’s going to appeal the ruling.

As the court itself noted, “when construing a constitutional amendment, unless its terms clearly show intent that the amendment be retroactively applied, ‘we presume the amendment has prospective application only.’ ” Amendment 64 had no retroactive provision. But the court reasoned that state statute and doctrine established by the Supreme Court allow “a defendant to benefit retroactively from a significant change in the law.” And there’s no doubt Amendment 64 changed law.

Suthers counters that “well-established retroactivity law in Colorado indicates that statutory changes are prospective only unless the General Assembly or the voters have clearly indicated” otherwise.

And he worries about “the implications this ruling may have on other non-marijuana cases.”

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Indeed, lawmakers could become reluctant to make major adjustments in the criminal code if they will have a cascading effect on those previously convicted.

By the way, the actual prosecution of the defendant, Brandi Jessica Russell, was hardly a miscarriage of justice. She tested for amphetamine, marijuana and methamphetamine after she and her husband took an injured baby to the hospital and the doctor grew suspicious. And the appeals court did uphold her conviction on possession of meth.