One of the most misleading arguments against the legalization of cannabis is that no one really goes to prison for pot possession.
For example, the DEA published a remarkable report on “The Dangers and Consequences of Marijuana Abuse” in 2014. It’s remarkable in so far as it consists of a tired and predictable indictment of cannabis, primarily bullet-point lists of concerns lacking in any real analysis or reconciliation with contradictory research. But that’s another matter.
What’s relevant here is the section on “Marijuana and Incarceration.”
The DEA wants to make it absolutely clear that “federal marijuana investigations and prosecutions usually involve hundreds of pounds of marijuana. Few defendants are incarcerated in federal prison for simple possession of marijuana.” This statement is absolutely true—and absolutely irrelevant.
Here is a simple and basic fact about the criminal justice system in the United States: Almost all arrests for violations of criminal law are made by state and local authorities.
In other words, federal law enforcement is not responsible for enforcing laws against marijuana possession.
Here is another basic fact: Marijuana possession is a misdemeanor crime, usually subject to a penalty of a year or less.
Because of these two fundamental facts about the justice system, marijuana possession laws are misdemeanors enforced by local police, and people sentenced for misdemeanors go to jail not prison.
Prison is for individuals sentenced to a year or more, jails are where people are locked up for sentences of less than a year. More importantly, whether sentenced to jail or not, when people are arrested (for anything), they are taken to jail. Frequently, they are released on bail, but sometimes they are not. Furthermore, even if not sentenced to jail (at trial or due to a plea bargain), they are placed under correctional supervision—usually referred to as probation. All of this is costly to the criminal justice system and to taxpayers.
The DEA goes to great length to argue that people are not incarcerated for marijuana possession charges.
Before looking more closely at their argument, it should be noted that this begs an obvious question: If people aren’t being sent to jail, why should marijuana possession be against the law?
That question suggests an obvious answer, which is that police like being able to arrest someone for marijuana possession, even if they won’t end up in prison. That’s why they try to justify prohibition by arguing that lots of criminals use marijuana.
Here is what the DEA offers on the subject of marijuana and incarceration.
The DEA reports that marijuana accounts for 25 percent of the 25,237 people sentenced in federal court for drug crimes in 2008, and of these 6,337 marijuana defendants, only 99, about one percent, were sentenced for possession.
The DEA also cites a Bureau of Justice Statistics (BJS) report stating that in 2006, 12.7 percent of state prisoners and 12.4 percent of federal prisoners were serving time for a marijuana-related offense. If those figures are applied to 2013 BJS data, there are 161,391 prisoners in state prisons and 26,600 in federal prisons.
In a 12-month period from October 2005 to September 2006 there were 6,423 offenders sentenced in federal court on marijuana-related charges, and 95.9 percent involved trafficking. In the 2006 fiscal year, there were 406 people sentenced in federal court for simple possession, 1.6 percent of all drug offenders.
The Office of National Drug Control Policy is cited by the DEA for the observation that many inmates sentenced for marijuana possession negotiated reduced charges as part of a plea deal and figures for possession inflate the number of those actually brought to court for possession.
With respect to the total correctional population, people with marijuana possession as their only offense amount to 0.9 percent of all inmates and 2.9 percent of those incarcerated for any drug law violation. This suggests about 20,000 people (given that the total jail and prison population in the United States is about 2.2 million inmates).
What they don’t tell the public is how many people are in jail on any given night waiting to make bail for a marijuana arrest, or how many people are under correctional supervision by probation officers, or how many people have been forced into unnecessary drug treatment programs.
All of these outcomes are costly to everyone involved, and none of them are justified.
Nonetheless, in addition to irrelevant statistics about prison incarceration, the DEA wants everyone to know that “marijuana is the most commonly detected drug at the time of arrest” for booked male arrestees in 10 major metropolitan areas and that “in seven of the 10 sites, arrestees who are using marijuana are using it on the average of every other day for the past 30 days.” As suggested above, law enforcement seems to like being able to arrest people for marijuana because a lot of criminals use it.
What the DEA fails to address is that 620,000 people were arrested for marijuana possession in 2014. Those who do not live is a state where marijuana possession has been decriminalized were taken into custody, fingerprinted, photographed and placed in a jail cell. They had to post bail, hire a defense attorney, submit to correctional supervision and various conditions (such as loss of their driver’s license, mandatory drug testing and enrollment in a drug treatment program) to resolve their case. Then they joined the millions of American who have to note that they have been arrested whenever they apply for a job.
The DEA, their supporters in law enforcement and others who support keeping cannabis illegal can make all the spurious, irrelevant arguments they want. It doesn’t change the reality here.
Cannabis arrests are costly to society, costly to taxpayers and costly to the individuals who are arrested.