Year in Review 2016: High Court Evaluates Retroactivity of Amendment 64

by Law Week Contributor

Colorado Supreme Court’s fall session consisted of a case that evaluated the retroactivity of Amendment 64, which enshrined into the state constitution the right to use and possess up to 1 ounce of marijuana. The court heard oral arguments Oct. 4 in Brandi Russell v. People and People v. Boyd, both of which saw the Colorado Court of Appeals extend the amendment’s protections to criminal defendants whose cases were still up for appeal when the law became effective. 

If voters wanted marijuana legalization to include crimes that were committed before Amendment 64, “all they had to do was say so,” Assistant Attorney General Kevin McReynolds said in oral arguments during Boyd. “They did not do so here.”

In March 2014, the appellate court reversed a marijuana possession conviction in Russell, because the legalization of recreational marijuana qualified as a “significant change in the law.” Another panel on the appeals court did the same for Boyd in August 2015. 

“If that rule were to be so much broader than to mean whatever anyone happens to think is the interests of justice, that would completely swallow the presumptions we do have both for constitutional amendments and for acts of the General Assembly,” McReynolds said. “(There is) nothing irrational about holding someone accountable for a crime under the law in effect at the time.”