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Cannabis Incarceration

Cannabis Incarceration

Should Those Imprisoned for Subsequently-Decriminalized Marijuana Use Be Freed? 

By Eli Haynal 

Marijuana use is legal in small amounts in 27 U.S. states, but prisoners still remain behind bars on marijuana-related charges. [1] If these people are serving a sentence for an act that is no longer a crime, should they remain imprisoned? 

Article 1, section 9 of the U.S. Constitution prohibits the passage of ex post facto laws. These are laws that retroactively declare a certain action criminal or increase the severity of punishment for a criminal action. This means that no one can be punished for an action that they committed before it was declared criminal. 

If this same logic was applied to decriminalization, it would prevent the retroactive decriminalization of marijuana use and keep people imprisoned under the conditions of their original offense. However, there is a significant distinction between retroactive criminalization and decriminalization. 

The original prohibition of ex post facto laws was instituted to stop the unjust punishment of the accused; the intent behind the law was to protect them. In the case of marijuana use, the best interest of those behind bars would be to consider new laws as a philosophical judgement on guilt acting independently of time. They would therefore have committed no crime and should suffer no punishment. 

However, if the intent behind the law is being considered, it is only fair to do the same for the motivations of criminal proceedings. One of the core goals of a criminal trial is to determine criminal intent. If those in prison for marijuana possession intentionally broke the law, then that intent remains true despite the subsequent decriminalization of their actions. 

 If individuals are serving a sentence for an act that is no longer a crime, should they remain imprisoned? – Photo by Unsplash. 

But people are not declared guilty based on intent alone. It is an essential element in determining guilt, but it does not constitute guilt without action. If intent is all that remains against those in prison for marijuana-related offenses, they would not be considered guilty if tried in a criminal court. 

Even theoretical retrial leads to further issues. This line of reasoning began with the U.S. Constitution’s prohibition of ex post facto law, and the same document prohibits double jeopardy, multiple trials for the same offense. However, the original intent of this law was again to protect the accused, and it was instituted to prevent retrial after acquittal, not conviction. This returns the debate to the intent of the law, and the argument becomes circular, alternating between positions. 

Arguments for and against the justice of freeing prisoners convicted of marijuana possession can obviously become quite convoluted very quickly. If both cases can be sufficiently justified legally and philosophically, the benefits and detriments of each case should be examined to discover the best course of action. 

There are several immediately apparent benefits to freeing those convicted of marijuana-related offenses. First, sidestepping a lengthy debate on the merits of the current prison system, or lack thereof, freeing these individuals would free space in prisons and thereby reduce costs to taxpayers and reintegrate productive members into society. 

Second, freeing these people would be a basic act of kindness to fellow human beings. The only moral reason to hold back from kindness would be if there is some risk or cost associated with the decision. 

The standard argument against the release of prisoners is the risk of their return to criminal activity. The question of whether those who committed marijuana-related offenses are likely to repeat these actions is irrelevant to this issue. If the answer is no, then there is no risk in releasing them. If the answer is yes, it does not matter as a repeat of their actions would no longer be criminal activity. 

Therefore, the question becomes whether those who have previously committed marijuana-related offenses are more likely to engage in other criminal activity. Studies have concluded that marijuana is a risk factor for violent behavior. However, alcohol is also acknowledged to have the same risks, yet adults are not imprisoned for alcohol use. [2] 

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After considering legal reasoning and substantive consequences, the last recourse is moral philosophy. The central question from this angle is the existence of objective morality. 

If an objective moral standard exists, then it is theoretically possible to administer justice entirely free of discrimination and the current form of the law should be the truest expression of the moral standard. Therefore, because the objective moral standard is independent of time, the current law should be applied retroactively and those imprisoned on marijuana-related charges should be freed. 

The case of subjective morality is surprisingly similar. In this case, the law is merely society’s constructed moral standard. Whatever standard society currently agrees upon should be the standard by which they operate. In this case, society’s current decision against the criminality of marijuana use is a correction of their old standard. The new laws supersede the old and those imprisoned on marijuana-related charges should be freed. 

Considering the moral and legal reasoning and benefits associated with the release of prisoners convicted of marijuana use, they should be freed in locations where their offense has been decriminalized. Provisions against ex post facto law provide a strong legal precedent for the protection of those unjustly affected by retroactive law, and moral philosophy supports the idea that justice is independent from time. 

This reasoning justifies the possible choice to release those imprisoned for marijuana use, and the benefits of their release reveal the correctness of this course of action. Their release would have a direct social and political benefit. Furthermore, it would be morally repugnant to imprison the innocent, while their release would be an act of kindness and a positive good. 


  1. (2021, April 8). Cannabis overview. NCSL.  
  1. Berenson, Alex. (2019).  Marijuana is more dangerous than you think. NCBI. Retrieved from
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