Marijuana Possession Convictions to be Pardoned in Colorado

“The Governor may grant pardons to a class of defendants who were convicted of the possession of up to two ounces of marijuana.”  C.R.S. 16-17-102(2).

On June 29, 2020 and in that one sentence, Colorado grants its Governor the unilateral power to pardon an entire class of society and removes a significant obstacle towards their ability to chase the American dream of life, liberty, and the pursuit of happiness.  Although good news for those that may be pardoned under this new law, the long journey towards righting this past wrong does not stop here.  It remains to be seen what procedure the Governor will implement to process pardon applications under this statute, what factors he will consider when determining if he will grant or deny the pardon request and what effect the Governor’s pardon will have on the pardoned individual.

The Implementation of Marijuana Possession Pardons

Governor Polis stated in his signing ceremony in front of Simply Pure, a black owned dispensary in Denver, that he can start issuing pardons in approximately 90 days.  In the next 90 days we can expect the Governor to begin releasing forms and procedures for individuals to request marijuana pardons.  Once we see how the Governor uses his unilateral marijuana pardon power, we can start understanding its application as a matter of public policy.  As part of this marijuana pardon power the Governor may, but is not required, to seek input from person or agencies as the merits of the marijuana pardon petition.  This is where the real impact of this statutory pardon power will make itself apparent.

The Effects of Marijuana Possession Pardons

Will the Governor blanket pardon all petitioners?  What factors will he consider when determining whether to  grant or deny the pardon?  What persons or agencies will participate in the Governor’s decision?  If the Governor’s pardon power is rarely used, then its effect will be minimal.  In the alternative, if the Governor’s pardons all petitioners then it will send a clear message to all Colorado law enforcement agencies and the judicial system not to dedicate any resources towards investigating, prosecuting, or adjudicating these crimes.  It is possible, criminal possession of up to two ounces may only be a crime on paper and not in reality.

However, it is important to remember that a pardon by the Governor is only available to individuals that have already been arrested, tried, and convicted of the underlying crime.  A pardon only eliminates the criminal sentence phase of the criminal law procedure, it does not seal, expunge, or remove the original criminal conviction in any way.  To accomplish these goals the convicted and now pardoned individual needs to head back to court and petition to have their criminal record sealed from the public domain.

In the long term It makes sense that individuals convicted of low level and unevenly applied criminal prosecutions in the past should not be at a disadvantage today when that same behavior is deemed no longer criminal.  A pardon by the Governor is just the first step towards the pardoned individual’s journey towards social parity.  The next step is for Colorado to develop and implement a more robust expungement program to truly capture the larger subset of society that has been devastated by criminal convictions that would no longer be criminal today.