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CT continues to prosecute some marijuana cases despite legalization

Top prosecutor testified Wednesday that some cases filed before 2021 still haven’t been dismissed

March 1, 2023 @ 6:31 pm

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Connecticut’s top prosecutor told lawmakers Wednesday that the state is still pursuing criminal action against people previously charged for possession of marijuana, despite a law passed almost two years ago that legalized the adult use and recreational sale of cannabis.

“I would say the answer is yes,” chief state’s attorney Patrick Griffin said in response to a question about whether there are still pending criminal cases for marijuana possession.

Griffin’s remarks came during a public hearing for proposed legislation that would end the prosecution of any ongoing marijuana-related cases if the activity being prosecuted is now decriminalized.

“I will tell you very directly that I’ve had conversations with all 13 state’s attorneys, that we’re in agreement that what is legal today should not be penalized because it occurred prior to the passage of the bill,” Griffin said.

Adult use and possession of small amounts of recreational marijuana has been legal in Connecticut since 2021, and the first marijuana retail shops opened earlier this year. The legalization effort was inspired in part by an effort to right the wrongs of the war on drugs, which disproportionately penalized communities of color.

But the state’s Division of Criminal Justice, overseen by Griffin, still hasn’t dismissed all of the marijuana offenses that have since been legalized.

It is unclear how many marijuana-related criminal cases remain, and Griffin described the difficulties of getting an accurate count given that many drug offenses were grouped under the same statutes. He told legislators that state prosecutors will meet in the coming days to discuss the creation of a policy that would address the matter.

Rep. Steven Stafstrom, D-Bridgeport and co-chair of the legislature’s Judiciary Committee, who asked the original question about whether there are pending cases, seemed astounded when the state’s top prosecutor answered in the affirmative.

“Wouldn’t the most judicious and fastest way to achieve … our mutual goal would be for the Division of Criminal Justice to just go in and dismiss all those charges?”

Rep. Craig Fishbein, R-Wallingford and a ranking member of the Judiciary Committee, said he was “troubled” to hear Griffin’s division hadn’t dismissed the charges, given the “parade of horribles” that typically follows the charges.

“A violation of probation, for instance, can attach to a possession charge,” Fishbein said. “Many times in family court I hear, ‘Well, he’s been arrested for possessing marijuana, and therefore he shouldn’t see his children.’ That parade of horribles should end, given the policy that this state has provided.”

Specifically, the 2021 law allows for a person to have up to 1.5 ounces in their possession and 5 ounces in their home or locked vehicle. It also erased certain cannabis-related criminal convictions, some automatically and others through the person’s petition.

The proposed legislation would go a step farther by mandating prosecutors to reevaluate marijuana-related charges to determine whether “the action being charged is no longer a chargeable offense” and dismissing the charge if it’s no longer considered illegal.

It would also require sentencing courts to order a hearing if a person was incarcerated prior to, on or after legalization. If “good cause” was shown during that hearing, the court would have to reduce the person’s sentence or release the person, whether fully or on supervised release, according to the bill.

Griffin opposed the section of the bill in which the legislature spells out the process that the criminal justice division must use to reevaluate the charges.

Therefore, by directing his division to take action on a legal matter, he said, the legislature would be violating the state constitution’s separation of powers doctrine — which holds that the executive, legislative and judicial branches act independently of one another.

“The proposed legislation would direct us to exercise our discretion, order us to exercise our discretion. That would, in our opinion, violate the separation of powers,” Griffin said. “What I’m saying, as clearly as I can say, is we do recognize the intent of the legislature. I certainly recognize. And I think I can speak for the 13 state’s attorneys: We will take action on this matter.”

But Sarah Gersten, the executive director of the Last Prisoner Project — a national nonprofit dedicated to marijuana criminal justice reform — publicly testified Wednesday in favor of more supervision of prosecutors.

While the proposed bill would mandate state’s attorneys to drop the pending cannabis charges, she said it should also establish an independent oversight body to ensure prosecutors move swiftly and lawfully.

“There is a large body of evidence to show that these crimes were designed primarily to subjugate and marginalize communities of color,” Gersten said. “But we now have the chance to remedy the fact that there are still tens of thousands of people across the country, and here in Connecticut, incarcerated, facing pending prosecution or serving terms of supervision for the exact same activity others are now able to profit off of in the state of Connecticut.”

Olivia Rinkes, a student at the University of Connecticut, said people are “simply engaging in semantics” by referring to previously outlawed marijuana offenses as currently viable charges.

“The intention of legalizing cannabis was to recognize and undo the damages to predominantly Black and brown communities that have occurred because of the criminalization of cannabis and the subsequent stigmatization of individuals who used or are perceived to use cannabis,” Rinkes said. “The fact that anyone would pursue or uphold the continued prosecution of these charges simply because it was on the books or illlegal at the time of arrest really speaks to the destabilizing and punitive methods of the criminal justice system.”

Christina Capitan, who works with CT CannaWarriors — a cannabis advocacy organization — said the state should do “whatever it can” to correct the wrongs of cannabis prohibition.

“There’s no amount of money and, honestly, no amount of reform that can go back and truly right the wrongs of the war on drugs,” Capitan said. “But this bill is certainly a step in the right direction.”

And while state residents await the Division of Criminal Justice to drop the pending cannabis-related cases, many also await the full implementation of Connecticut’s delayed “clean slate” effort, which will wipe the criminal records of formerly incarcerated people convicted of low-level crimes.


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