When it comes to cannabis in Colorado, a lot has obviously changed since the mid-1980s. For one, judges no longer spell marijuana with an H (marihuana).
Cañon City-based family and criminal attorney Roger Larsen is betting a more substantial change — the shift in societal acceptance of marijuana as a legal drug — will make a difference in his bid for district attorney in Colorado's 11th Judicial District, which serves Fremont, Chaffee, Custer and Park counties.
Larsen held the job from 1985 to 1988, but lost his re-election bid in November of '88 after being arrested for possessing less than a half-ounce of pot one month prior to the election.
Thanks to Amendment 64, possessing such a small amount of cannabis is no longer a crime in the state of Colorado. But the law does not retroactively expunge records like Larsen's of the criminal offense. Not that he's trying to.
"To be quite frank, it was an internal issue then," Larsen tells the Independent. "I'm a different person now, but I'm not going to hide that part of my history."
Should Larsen win the race against current Assistant District Attorney Molly Chilson in November, he'll likely have a say in whether others like him are able to "hide" their marijuana histories.
General rule of thumb is that a law applies only to circumstances arising at or after that law is enacted. So if you break a law, then the law changes, the fact that you were convicted does not change. Amendment 64 is no different.
"There was nothing in the constitutional amendment that automatically sealed a person's criminal record," explains Christine Donner, executive director of the Colorado Criminal Justice Reform Coalition. "Neither the Legislature nor the courts have done that, either."
What's more, under Colorado's Open Records Act, an arrest will show up in a simple background check even if charges are never filed or a case is dismissed. (The Marijuana Arrest Research Project found 210,000 such arrests in Colorado over the past 25 years.)
And that, says Art Way, state director for the Drug Policy Alliance, can be haunting.
"There's a lot of collateral damage," he adds, "in terms of housing, employment and education that can flow from a possession charge, even now that it's legal."
However, those who have had a run-in with the law — marijuana-related or otherwise — can attempt to seal or expunge their record (akin to hiding or erasing it, respectively). In 2013, the Colorado Legislature clarified how to do that for offenses committed on or after Oct. 1, 2013 — three months before Amendment 64 was enacted.
Prior offenses fall under a mind-numbing patchwork of old statutes.
Basically, if you meet a set of criteria, you may petition the court in which the case originated to seal or expunge your record — a decision that the district attorney for that judicial district may weigh in on.
"DAs can present their opinion," says Donner, who helped shape the process. "And they have more authority over more serious cases."
Specifically, district attorneys have veto power over the sealing of any drug convictions prior to 2008, as well as higher level drug felonies committed after 2013.
In other words, for those trying to navigate this legal maze, DAs are often the gatekeepers.
Even if he wanted to, Larsen couldn't simply expunge his own record if he wins in November. A special prosecutor would be appointed to preside over the case.
Regardless, it just isn't something he intends to pursue.
"It's the furthest thing from my mind," he says.
According to records from his case, Larsen testified that he bought pot from his secretary, but only so he could confront his wife about using it.
(Larsen's wife, according to the court's characterization, was an occasional marijuana user who medicated for postpartum depression.)
The state Supreme Court didn't think Larsen's explanation was credible, saying Larsen had "[undermined] public respect for the law" by turning a blind eye on the marijuana use of his wife and his secretary.
"We cannot have two sets of standards, one which applies to the friends and relatives of prosecutors and another, higher standard which applies to all other persons," wrote Justice Mary Mullarkey in the majority opinion.
Larsen was suspended from practicing law for three years, and some on the bench wanted him disbarred.
Still, Larsen stands firm on how the experience might impact him should he win in November.
"[My past] does not make me more sympathetic," he says. "Never has."
And Larsen shows no sign now that he'd be lenient in matters of marijuana as his judicial district's top prosecutor.
"You have to look at, what are the unintended consequences of legalization? We've seen an increase in people admitted to detox centers, an uptick in marijuana as a factor for why children get removed from [their parents'] home, an uptick in stats about children using marijuana. And none of that is particularly good."
What about law-abiding adults who want to light up in the privacy of their own home?
"I don't care," Larsen says before circling around.
"I don't approve. I really don't."
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