In 2012, Americans were surprised to see the first legalization of recreational marijuana use in Colorado and Washington. In the years that followed, a handful of states followed suit, including Alaska and Oregon, in 2014. And on Nov. 8, California, Nevada, Maine, and Massachusetts all voted in favor of legalized use, sale, and consumption of recreational marijuana.
These laws were surprising for consumers of marijuana — but they are perhaps even more relevant to people in jail for marijuana-related crimes. How will the U.S. court system handle dealing with individuals incarcerated for these crimes? California’s Prop 64 is retroactive, meaning it will allow people behind bars to apply for resentencing and, in some cases, even release. “A person currently serving a sentence for a conviction … may petition for a recall or dismissal of sentence,” reads the prop. In other states that have legalized marijuana, things are thornier.
But legalizing pot got us thinking of a similar situation of the past, when alcohol was illegal, and then became legal again. Just 83 years ago, U.S. Prohibition spelled a nationwide ban on production, import, transportation, and sale of beverages containing alcohol, via the 18th Amendment to the Constitution. It lasted from 1920 until 1933, when the 21st Amendment was passed and ratified, ending our long dry spell.
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So what happened to those jailed for alcohol-related crimes once Prohibition was repealed?
“Few individuals were released after Prohibition was repealed,” Ruth Engs, a professor of applied health science at Indiana University, told me via email. Sentences were generally served out. “They had illegally manufactured alcohol when it was illegal,” Engs explained. And while individuals could request pardons from their state governors, it’s unclear how frequently that actually occurred.
In fact, even after the repeal of the 18th Amendment, states were allowed to continue Prohibition-like practices by keeping temperance laws. The state-by-state regulation — which also mirrors our changing marijuana laws — also pertained to how states handled alcohol crimes during Prohibition, explains writer Daniel Okrent, whose recent book “Last Call: The Rise and Fall of Prohibition” served as a source for a 2011 miniseries called “Prohibition.” “For instance, Michigan gave life terms to those convicted three times of selling even a small amount; Maryland, among others, never had a state prohibition law,” Okrent says.
Another hurdle to vacating Prohibition convictions was the fact that often, individuals convicted of crimes were generally not solely convicted for illegal alcohol sales, but also for crimes that went hand in hand with those sales, like “cross-border smuggling, various gun crimes, tax evasion, and a variety of others,” Okrent explains. There was no automatic pardon, and though terms could have potentially been shortened, there was no set practice.
Then there’s the fact that prison terms were significantly shorter in the early 1900s than sentences given today, making it even more unlikely that pardons would have been granted, says Engs.
Will the rapid change of state laws in the modern day follow the same strict sentence-serving practices with marijuana-related crimes? Only time will tell.