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Locked Up

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Some criminals deserve to be locked up in prison. Some criminals deserve to be locked up in jail. Others deserve to be under other forms of correctional supervision, such as probation or parole. But on the other hand, some crimes aren’t really crimes, and the justice system is not always just (something marijuana users understand clearly).

The issue here is incarceration—specifically, how many people in the United States are incarcerated and what states place the most people in the correctional system (not for marijuana-related offenses, but for all criminal offenses). In 2014, the total correction population of the United States was 6,851,000. Most of these individuals were on probation (3,864,100) or parole (856,900). There were 1,561,500 people in state or federal prison and 744,600 in local jails. In terms of percentages, 70 percent were on probation or parole (also known as community supervision) and 30 percent were locked up.

About half of the correctional population of the United States consists of the correctional populations of seven states (in part because of their large overall populations): Texas, California, Georgia, Florida, Pennsylvania, Ohio and New York. In these states, at least 60 percent of the total correctional population is under community supervision, except for in New York.

Which states have the highest incarceration rates? Here are the top 10: Louisiana, Oklahoma, Alabama, Georgia, Mississippi, Texas, Arizona, Arkansas, Kentucky and Alaska. Interestingly, only two of these have legalized or decriminalized marijuana.

What, though, does marijuana reform have to do with incarceration rates, with how many people a state sends to prison?

Well, the answer is not as much as many people think and yet a lot more than people realize. Truth be told, not many people go to prison, or jail for that matter, for marijuana-related offenses. This fact is of little consolation to those who do, nor does this change the injustice of marijuana prohibition (in which arrests and subjection to criminal sanctions is the key issue). Most people convicted of marijuana possession likely receive probation, and most of those sent to prison for marijuana offenses have been arrested for felonies (usually manufacturing and/or sales).

However, marijuana laws reveal something else about how a state utilizes its criminal justice system in general and its correctional system in particular. Call it incarceration culture, an approach to social control in which a state makes it a practice, and in some cases a priority, to lock people up.

In the study of the criminal justice system, there are five recognized philosophies used to describe approaches to the sentencing of individuals convicted of criminal offenses.

Retribution is also known as “just rewards” and is based on the belief that some crimes deserve incarceration as punishment, for example murder and rape. Incapacitation involves keeping people incarcerated so they will not be committing crimes and is based in part on the knowledge that a small number of people commit a large number of crimes (such as violent assault and theft). Deterrence is an approach that argues that punishment prevents crime by warning people of the consequences. Rehabilitation is a philosophy that correction programs can fix or treat various personal problems that contributed to criminal behavior—it is at the heart of the concept of “corrections” or correcting people’s behavior. Restoration is an approach to restore both offender and victim to their pre-crime status, an approach to heal the breach caused by the criminal offense (such as having a youthful thief work for the store he/she stole from as a form of restitution).

One of the problems with marijuana prohibition is that under close scrutiny none of these philosophies really justifies criminal sanctions for marijuana use. Indeed, over time, the justifications of punishing people for marijuana use in terms of retribution or incapacitation have been largely abandoned. Deterrence and rehabilitation are the popular justifications today, and even these are losing favor.

As marijuana reform successfully challenges the overuse of these sentencing philosophies, as applied to marijuana offenses, it also raises doubts about their application to other offenses. Or, alternately, as the public questions the use of these sentencing philosophies in general, they begin to understand the merit of marijuana law reform.

There is a connection between America’s reappraisal of incarceration culture and the increasing adoption of marijuana reform policies in states across the country. Again, some crimes deserve punishment, and some criminals deserve to locked up. But this is a different issue than policies that favor incarceration over other sentencing alternatives, including community supervision as an alternative to incarceration and reducing the number of offenses subject to criminal sanctions.

When states are ranked according to their incarceration rates (the number of people sent to jail or prison rated by state population), the two states in the middle of the rankings (statistically known as the median value) are Michigan and Wisconsin, who both have an incarceration rate of 770 per 100,000 population.

Separate the states into two categories, with incarceration culture defined as states with incarceration rates over the median value. There are 51 jurisdictions in all (50 states plus Washington, D.C.). Of the 25 states with an incarceration culture, six of them (24 percent) have decriminalized or legalized marijuana. Of the remaining 26 states with median or lower incarceration rates, 15 of them (58 percent) have decriminalized or legalized marijuana. Seven of the eight jurisdictions with the lowest incarceration rates in the country are also reform states (New York, Rhode Island, Minnesota, Vermont, Massachusetts, Maine and Washington, D.C.).

To be clear, this demonstrates an association between marijuana reform and a rejection of incarceration culture. It does not demonstrate a causal relationship. Indeed, a rejection of incarceration culture could be a strong reason why these jurisdictions reformed their marijuana laws. There are also many states with low incarceration rates that have not reformed their marijuana laws—though they may be some of the best targets for future advocacy. Nonetheless, the idea of criminal justice reform, the idea of reappraising the use of the criminal justice system to lock up so many Americans, goes hand in hand with the idea of reforming the nation’s marijuana laws.

Jon Gettman is the Cannabis Policy Director for High Times. Jon has a Ph.D. in public policy, teaching undergraduate criminal justice and graduate level management courses. A long-time contributor to High Times, his research and analytical work has been used by NORML, Marijuana Policy Project, American’s for Safe Access, the Drug Policy Foundation, the American Civil Liberties Union and other organizations. Jon’s research contributions to the topic of marijuana law reform have included findings on the economic value of domestic marijuana cultivation, attempts to have marijuana rescheduled under federal law and racial disparities in marijuana possession arrest rates. Serving as NORML’s National Director in the late 1980s, he was instrumental in creating NORML’s activist program.

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