Guilty as Charged…or Are You?

With a longstanding reputation as the U.S.’s progressive outlier, it is hardly surprising that California finds itself at the forefront of cannabis legalization. Since the ratification of California’s Proposition 64, which legalized recreational use of marijuana for those 21 and over in November 2016, California has dominated headlines and sparked widespread debate both nationally and internationally. Yet, recent interest in California has less to do with the legalization of cannabis itself and its impact on California’s future, and more to do with California’s past, as Proposition 64 contains a retroactive provision allowing for the abatement, or reduction that may even result in an annulment, of cannabis-related offenses. While California may become the eighth state to legalize cannabis for recreational usage, Proposition 64’s retroactive clause is unprecedented. More generally, retroactive legislation and abatements are virtually non-existent or relatively novel to many western criminal codes, and thus raise fundamental questions regarding the function of these systems.

Fully embracing their progressive reputation, San Francisco announced that its District Attorney’s office will proactively begin to undertake the process of reviewing and recalling over 7,000 marijuana cases -both felonies and misdemeanours – to account for the law’s new provisions. These corrections will range from sentence reductions and early releases to conviction reductions and even expungements. In theory, the proposition requires a convicted individual to file a petition; however, through San Francisco’s proactive approach, many of these cases will be handled almost automatically without the convicted individual having to take any further action like filing paperwork or appearing in court. While San Francisco’s automatic approach will certainly simplify matters for many affected individuals, this initiative is specifically targeted to assist minorities who are disproportionally represented amongst these cases. The goal is to ensure that these individuals who have been historically targeted and mistreated by an unequipped criminal justice system face no further barriers.

Proposition 64: A Gateway to lex mitior?

While Proposition 64’s retroactive leniency will undoubtedly have a wide-ranging social impact by increasing housing, employment and other opportunities for those with cannabis-related criminal histories, the legal implications of proposition 64 are groundbreaking and likely to incite debates on the legality of retroactive actions in western criminal codes. While California is not the first state to grant retroactive abatements for cannabis-related offenses, it is the first to do so officially through legislative channels, as clemency and pardoning powers fall under the jurisdiction of the executive branch in the United States, including in most states. Following an alteration to its cannabis laws in 1971, legislators in Washington State passed a provision that encouraged, but not required, parole boards to reevaluate the sentences of convicted individuals serving time for offenses whose punishments had been recently altered under the new law.

Most western criminal codes have ex-post facto provisions, which protect individuals from retroactive actions that would otherwise increase a punishment’s severity or attempt to reindict an individual. Retrospective leniency, however, is a relatively novel and unprecedented principle in most criminal codes. Guided by the principle that individuals cannot be punished or even tried for a crime if they were unaware of legal repercussions prior to committing the act, almost all criminal codes explicitly reject retroactive applications. From a theoretical standpoint, retroactive applications contradict the very idea and function of a law. In addition, the retroactive application of laws would require comprehensive administrative resources that many systems cannot afford.

Yet in 2009, the European Court of Human Rights made a landmarked decision in Scoppola v. Italy (2), ruling that article 7, which protects citizens from “non retropsectivness of more stringent criminal laws”, also guarantees retroactive leniency, known as lex mitior. The implementation of this doctrine ensures that the defendant receives the benefit of the doubt. Since this ruling, lex mitior has become a standard of most European criminal codes.

Due to the complexity of criminal proceedings and their potential to limit personal liberties, legislators and judicial officials alike have advocated against dramatic changes to criminal laws unless absolutely necessary, and as a result, up until recently, issues surrounding lex mitior have been relatively rare in criminal cases. When changes are made, they are more likely to occur through judiciary means, such as legal precedents and supreme court rulings, that seek to clarify the interpretation or meaning of a law, such as in Scoppola v. Italy (2).

Lex Mitior in North America

Recent initiatives concerning cannabis legalization, along with the European Union’s authoritative ruling, however, have brought the doctrine of lex mitior to The United States and Canada and sparked unresolved debates. While there are a variety of concerns, the most universal seems to be the legal grey area lex mitior creates and what this means for both the legal system’s integrity and its function. In accordance to most legal systems, cases are only retrospectively addressed through an appeal, for which both temporal and structural regulations exist. Appeals are a means of correcting a mistake that has allegedly compromised a defendant’s rights. In retroactive applications of a law, cases, which were theoretically conducted through proper channels at the time, are reopened and adjusted based on new information, which contradicts the very structure of a trial that determines a conviction based on the standard of beyond a reasonable doubt.

While retroactive laws raise various legal and ethical concerns, they may also alleviate the stress faced by the current judicial system in the long run and serve as an important step in effective criminal justice reform in some cases. Returning to the issue of cannabis, convictions disproportionately affect minorities. In California, black citizens are almost four times more likely than white citizens to be affected by cannabis convictions, while Latinos are twice as likely; however, minorities are no more likely to participate in these activities. Beyond correcting these injustices, retroactive laws will also allow affected individuals to eliminate or reduce the effect of their past criminal record, ultimately increasing their likelihood of success.

Finding Precedent in Canada

In the upcoming months, attention will likely shift from California to Canada, as Canada’s cannabis legislation takes effect July 2018. At this point, the government has not released a retroactive clause like that of Proposition 64 nor has the government expressed intentions of creating such a clause now.

With their impending legalization taking effect in July of 2018, attention concerning cannabis will likely shift from California to Canada.

Compared to the U.S., Canada has a more lenient policy towards prosecuting cannabis-related offences, especially in recent years. Nonetheless, 62% of Canadians are still in favour of a retroactive clause. In fact, back when Canada first announced its intention to legalize marijuana, many called for a suspension of Canada’s current marijuana laws due to this impending change, but the government refused, wanting to ensure that clear legislation was in place prior to its usage.

As in the U.S., there is in Canada a general animosity towards retroactive laws in relation to the criminal code, but in relation to the civil code, Canada’s Supreme Court established an authoritative and groundbreaking precedent in the case of British Columbia vs. Imperial Tobacco Canada Ltd. In deciding the validity of applying a law retroactively, the court ruled that there is no explicit amendment requiring prospectiveness, where a law is applied to future, not past, conduct.  The central issue of the case, however, was a concern for judicial independence, as the tobacco industry argued that a change in legislation compromised judicial independence and thus constituted legislative interference. In defining judicial independence, the court evaluated three aspects: judicial tenure, financial security, and administrative impairment. The court argued that in the event a law changes, judicial independence is not compromised since the judicial branch evaluates each case based on its individual merits, such as the evidence presented, testimonies, and counsel arguments. While British Columbia vs. Imperial Tobacco Canada Ltd. is a civil case, the concept of judicial independence is likely to arise in the future with criminal cases and cases such as this may provide guidance.

A Step in the Right Direction?

Beyond the technical complexities, retrospective legality raises several principal concerns. On one hand, lex mitior compels legal systems to evolve with changing viewpoints and sentiments within a society, just as any other sector would. Conversely, this idea of change also fundamentally questions the basic structures of a legal system, as they are designed to remain relatively constant in the face of change. While this doctrine will manifest itself distinctly in accordance with each issue, in terms of cannabis, lex mitior presents a unique opportunity. Beyond positively impacting disproportionately-affected minorities and potentially freeing up judicial resources in the long run, this policy is reflective of widespread support for recreational cannabis usage, which should be a paramount consideration in any legislative matter.