Pot Matters: Marijuana in the Larger Context of Criminal Justice Reform

Marijuana legalization can also be understood in terms of a more general interest in criminal justice reform, which has become a hot topic for a number of reasons.

Racial disparities in the use of deadly force by police has been receiving most of the attention lately. Racial disparities in marijuana arrests has also focused attention on criminal justice reform. But beneath these important concerns another one is driving interest in this issue, the realization that maintaining large correctional populations is just too expensive to sustain any longer.

The Bureau of Justice Statistics has recently release their annual data on correctional populations in the United States, comparing the latest data (from 2014) with prior years. This data on people under correctional supervision consists of totals of people incarcerated in either jail or prison, those on probation, or released on parole. This data does not include information on the offenses committed by people under correctional supervision.

The big headline is that the total population of people under the watchful eye of the correctional supervision is declining. 

In 2014, there were 6,851,000 people in the system, a decline of 52,200 offenders from 2013. The overall rate of 2.8 percent of adults in the United States being under some form of correctional supervision is the lowest since 1996. The correction population has been declining by an annual average of one percent since 2007. The incarcerated population increased slightly (by 1,900) in 2014, and most of the decrease over time has been in the area of community supervision (probation and parole).

Reducing the number of marijuana arrests in a jurisdiction is an easy way to reduce the burden on probation officers given that many marijuana possession offenses result in probation.

There is a lot of variance in state criminal justice practices, variances that are masked by the national figures. The trend toward reducing correctional populations is driven by changes in a few states, not all of them. One way to provide some context here is to see which states have the highest and lowest rates, the most and the least amount of people in the correctional system.

The states with the highest rates of correction supervision per 100,000 residents aged 18 and over are: Georgia (7,580), Idaho (4,101), Ohio (3,630) Pennsylvania (3,570) and Texas (3,490). Indiana, Michigan, Louisiana, Delaware, Mississippi, Arkansas and Kentucky also have rates over 3,000 per 100,000 adult residents. 

At the other end of the range, the states with the lowest rates of correctional supervision are: Maine (940), New Hampshire (1,050), Utah (1,250), West Virginia (1,330) and New York (1,430). Nebraska, North Dakota, Vermont, Massachusetts, Nevada, Kansas, Virginia, Montana, South Carolina, Iowa and California all have rates between 1,500 and 2,000.

From 2005 to 2014, the total correctional population in the United States fell by 241,000 from 7,055,600 to 6,814,600. Actually, the federal population increased by 33,500 in this period, but the state population fell by 274,500. However, the correction population increased in 26 states by a total of 283,100. It fell in 24 states and the District of Columbia by 557,300.

So which states are increasing their correctional populations? 

The biggest increases from 2005 to 2014 were in Georgia (48,000), Pennsylvania (47,500), Kentucky (30,700), Colorado (25,500) and Tennessee (20,600). The other states rounding out the top 10 were Alabama, Mississippi, Virginia, Arizona and Iowa.

The biggest decreases in correctional populations were in California (-160,700), Massachusetts (-101,800), Florida (-49,300), New York (-38,400) and Texas (-34,500). The rest of the top 10 in reduced correctional populations were New Jersey, Illinois, Minnesota, Connecticut and North Carolina.

There is no clear pattern here with respect of state marijuana laws, but there is an interesting trend worth noting. States that rely more on community supervision than incarceration often have reformed their marijuana laws.

Overall, looking at state data and adjusting for population, the rate for people under community supervision (probation and parole) is twice the incarceration rate. But some states rely on community supervision much more than others. Rhode Island and Minnesota, for example, have seven times more people under community supervision than incarcerated. 

Georgia is a national leader in correctional populations and has relatively high marijuana arrest rates. But Georgia also has a conditional discharge provision in which offenders in possession of small amounts of marijuana receive no punishment if they stay out of trouble for a year (that is, do not return to court on some other charge).  

Of the 15 jurisdictions with the highest levels of community supervision, in addition to Georgia, seven of them have decriminalized or legalized marijuana (Washington D.C., Minnesota, Ohio, Massachusetts, Washington, Oregon and Maryland). Increasing the list to 16 adds Colorado. Other states in this group of 16 have medical marijuana laws (Rhode Island, Hawaii, New Jersey, Vermont and Michigan).

Marijuana law reform and legalization are sound policies with great merit, but they are also part of a larger issue in the United States, the reform of the criminal justice system in ways that reduce the number of people under correctional supervision. This has always been part of the argument for legalizing cannabis—the justice system should stop wasting resources on marijuana users and divert them to violent offenders.

The recent trends in correctional supervision data present good news and bad news when it comes to the legalization of cannabis. 

The good news is that many states are receptive to criminal justice reform, particularly ones that have already made a commitment to community supervision as an alternative to incarceration. These states, and states that are reducing their correctional populations, may be the most receptive to ending arrests for marijuana offenses. 

The bad news is that other states remain committed to increasing arrests and increasing correctional populations. These states, their criminal justice professionals and their political leaders will present the greatest challenges to the legalization of cannabis throughout the United States.

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