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September 23, 2016

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 at 09:53 AM | Permalink


From first glance, it seems like the U.S. Attorney in Arizona is pursuing people who (albeit at a low level) are involved in the international and interstate distribution of a controlled substance. An argument can be made that -- under the Commerce Clause -- such offenses are primarily a federal rather than state responsibility. (Having practiced for years in a county near the state line that has an interstate highway, such a tendency is a new development. For the most part, it's fallen on local governments to deal with the minnows and the feds have only gotten involved if the fish is big enough. Why taxpayers in the Midwest should have to pay the expenses involved in prosecuting people taking drugs from California to New York has never been clear to me.)

The big issue seems to be the decision on which charges to bring. When the offender clearly appears to be involved in distribution (the primary basis for federal jurisdiction), charging them with possession seems to be a relatively lenient. I would assume -- with the offenses occurring in border regions -- that a significant number of these offenders are subject to removal upon completing their sentences and that probation/supervised release is not feasible. From a law enforcement/individual deterrence perspective, I worry that this practice is essentially "catch and release" -- a slap on the wrist that will do nothing to discourage the mule from heading back to pick up the next load given the relatively low chance of being caught on any individual run. (Of course, there may be things going on behind the numbers -- a significant number of distribution charges being reduced due to substantial cooperation in moving up the chain of command.)

Posted by: tmm | Sep 23, 2016 10:37:21 AM

If the transporter are largely aliens, then this should be a federal responsibility.

Posted by: federalist | Sep 23, 2016 11:30:26 AM

Praised. And my guess is these folks are originally being charged with PWID,which is then pled down to simple possession.

Posted by: former AFPD | Sep 28, 2016 12:47:34 PM

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