Amendment 64 ruling about past pot cases groundbreaking or a non-event?

Categories: Marijuana
Yesterday, the Colorado Court of Appeals ruled that Amendment 64 applies retroactively to defendants whose actions would have been legal under the measure and were appealing convictions when it became law. A64 co-author Brian Vicente has called the decision a huge victory, while Colorado Attorney General John Suthers suggests that it is largely inconsequential, although he'll probably appeal it anyhow. Who's right? One pot advocate sides with Suthers but wishes a pox on both his and Vicente's houses.

First, the decision itself, which flows from charges against Brandi Jessica Russell. In March 2010, as detailed in the ruling (on view below), Russell and her husband brought their infant son to a hospital in Granby after the child's father "heard a pop" and the infant began to cry. Doctors soon discovered that the child had a spiral fracture on his left femur -- and began to suspect possible child abuse.
Brian Vicente at the Amendment 64 victory party in 2012.
Russell was subsequently subjected to a drug test that detected methamphetamine and marijuana in her urine. The finding prompted a search of her home that turned up drug paraphernalia, plus amounts of marijuana, marijuana concentrate and meth.

Before long, Russell was charged with child abuse, plus possession of one gram or less of marijuana, marijuana concentrate and meth -- and while she was subsequently acquitted on the child-abuse beef, she was found guilty of the drug offenses. But Russell appealed, applying separate arguments for the meth and marijuana convictions. Her theory on the latter, according to the document, is that "Amendment 64 should be applied retroactively and that her convictions for possession of marijuana concentrate and possession of less than one ounce of marijuana should be vacated."

In the end, the court let the meth conviction stand. But the marijuana matters were tossed based on earlier precedent and a Colorado statute that "permits a defendant to receive post-conviction relief if 'there has been significant change in the law, applied to the applicant's conviction or sentence, allowing in the interest of justice retroactive application of the changed legal standard.'"

In post-ruling interviews, Vicente trumpeted the decision while asserting that Colorado prosecuted as many as 9,000 marijuana cases a year -- a claim made frequently during the Amendment 64 campaign. He also suggested that the ruling could "affect hundreds of people who were given jail terms for petty marijuana offenses."

Colorado Attorney General John Suthers.
This last supposition is expressly dismissed by attorney general Suthers. In a statement, he maintains that "the impact of this ruling is very limited given that possession of an ounce or less of marijuana was already a petty offense subject to a $100 fine. No one could be incarcerated for such a petty offense. The possession of marijuana concentrate was a Class Five felony until August of 2010 at which time possession of less than three ounces of marijuana concentrate was reduced to a Class One misdemeanor. Amendment 64 made possession of less than an ounce of marijuana concentrate lawful under Colorado law. It is highly unlikely that there is anyone incarcerated at this time strictly for possession of marijuana concentrate of less than one ounce."

However, Suthers's office adds that "we will likely appeal because of the implications this ruling may have on other non-marijuana cases. Well-established retroactivity law in Colorado indicates that statutory changes are prospective only unless the General Assembly or the voters have clearly indicated an intent to require such retroactive application. That was not the case with Amendment 64."

Kathleen Chippi.
Marijuana advocate Kathleen Chippi has her own take. In a response sent to Westword, she argues that Vicente "is either clueless or still marketing how wonderful A64 is even when the courts make these rulings that show how little A64 changed. His statement doesn't even make sense. No one in Colorado went to jail for a two ounces or less since 1975. Penalty: $100 ticket. How do hundreds of people end up in jail over a one-ounce petty offense? They don't."

But if Chippi agrees with Suthers on this point, she's aghast at the notion of a possible appeal. "Why waste the time and money?" she asks, adding, "It affects almost no one expect the girl whose case they ruled on, and she had additional non-pot charges."

Here's the complete Court of Appeals ruling.

Court of Appeals Amendment 64 Decision

Send your story tips to the author, Michael Roberts.

More from our Marijuana archive circa March 13: "Recreational marijuana smoking a firing offense? Colorado Bar Association says 'yes.'"

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KathleenChippi topcommenter

I hate to be right about lying liars like the A64 SCAMpaigner's but my compliant filed with Stan Garnett against the SCAMpaign for LYING to the voters looks more credible every month that passes.  

Notice the court also agrees MJ is merely "decriminalized" -- not "legalized" in their opinion.   

Nothing like having the states top prosecutor and the judges on the second highest court agree with your interpretation--a great bday gift. 

DonkeyHotay topcommenter

Lyin' Brian Vicente is an idiot blowing his own cock.

The ruling is de rigueur and inconsequential, for the following reasons:

1) possession of a pathetic ounce of pot was already a NO JAIL summary offense prior to that piece of shit A64. In fact, while A64 only allows 1 (one) pathetic ounce, and only for those 21 or older, the prior statute allowed up to 2 (two) ounces for anyone of any age with only a summary fine.

2) it isn't retroactive to all cases / convictions prior to A64's implementation, only to those cases that were not yet fully adjudicated, such as those pending prosecution or pending appeal, since open appeals stay the final conviction until the appeals are over.

Fuck you lying Brian Vicente, fuck you mendacious Mason Tvert, and fuck that worthless piece of shit A64 that you prevaricating scumbags stained and desecrated upon the Colorado Constitution.


Under an ounce of any controlled substance should be a petty offense at most. The current penalties don't fit the crime, that's why many believe our drug laws are inhumane, and considered cruel and unusual punishment. Possession laws were created to increase police power, not to increase public safety.

Cognitive_Dissident topcommenter

As for people being in jail for under two ounces, I'll bet there are. Some of them are considered parole violators. They like to put ridiculous provisions (let alone things that are actually illegal, like possessing pot, especially at the time) on eligibility for parole. You violate that, you're in jail. it happens all the time. I have little doubt plenty of parole violators are back in graybar hotel for pot. Ironically, there's probably a legal loophole guaranteeing that A64 won't affect those people.

Cognitive_Dissident topcommenter

Given that A64 was an initiative, you've got to think the voters did not wish to have the individuals in question charged with a crime, so in that way, it should be a non-event. However, if the state ever operates as expected by voters, it's generally groundbreaking.


@DonkeyHotay I love it! Suthers bitch-slaps Lyin' Brian Vicente, exposing him for the liar and traitor that he is. NO ONE was ever arrested for a marijuana petty offense in Colorado. Brian LIED to get A64 and Prop. AA to Pass. But the voters eat it up, hearing what they want to hear, and disregarding the rest.

Reap wot you sow, stupid stoners!

DonkeyHotay topcommenter

@Monkey  .. cool ... an ounce of LSD would be like 280,000+ hits.

Party on!

Cognitive_Dissident topcommenter

@Monkey  You make a great point! If you understand the real purpose of the drug war and the war on terror, you understand that they are a success, while in terms of the stated purposes, they're complete failures.

DonkeyHotay topcommenter

@Cognitive_Dissident  ... too bad the lying liars and incompetent imbeciles who wrote that ineffective piece of crap didn't explicitly include a provision that would have retroactively covered all previous criminal prosecutions and convictions for marijuana ... criminal drug convictions that tens of thousands of citizens suffer under for the rest of their lives.

DonkeyHotay topcommenter

@George ... the lying liars couldn't have spread their BULLSHIT far and wide without the help of braindead dishonest hack "journalists" like Michael "fluffmaster" Roberts and Bongsucker Billy Breathes ... 

all Whores for A64 who gleefully swallowed every drop of rancid spooge spewed by lyin' Brian Vicente, mendacious Mason Tvert and Bullshit Betty Aldworth.

Those lying asswipes might as well have claimed A64 would prevent 14 BILLION arrests for marijuana every year ... Wastword would have regurgitated that absurd lie without question or confirmation as they continue to do with their pathetic pot propaganda parade.

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