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Hastings Constitutional Law Quarterly

Abstract

There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug. These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards. And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.

In response to these legal developments, this Article advances the normative claim that past pot offenders are entitled to retroactive amelioration, in States that have legalized marijuana. This Article argues that such retroactive amelioration has deep support in constitutional provisions and U.S. Supreme Court decisions. Moreover, it suggests that, due to large numbers of offenders, over a long period of time, retroactive amelioration is best achieved through the use of amnesty.

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