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April 16, 2018

"Marijuana legalization can’t fix mass incarceration" ... but it should help a bit

German Lopez has this short piece on Vox, which carries the headline appearing in quotes in this post title and this subtitle: "A Republican and Democrat pointed to marijuana prohibition to explain mass incarceration. They’re both wrong." Here are key excerpts:

Over the past week, prominent political figures from both sides of the aisle have suggested that the prohibition of marijuana is to blame for mass incarceration.

Former House Speaker John Boehner, a Republican from Ohio, claimed, “When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head.  We have literally filled up our jails with people who are nonviolent and frankly do not belong there.”  Sen. Brian Schatz, a Democrat from Hawaii, tweeted, “More than 2 million in jail, mostly black and brown, many for holding a small amount of marijuana.”

The suggestion, however, is wrong. It is true that a lot of people are arrested each year for marijuana. In 2016, nearly 600,000 people were arrested for simple marijuana possession. These arrests on their own can create huge problems — leading to criminal records that can make it harder to get a job, housing, or financial aid for college.

But these arrests are only a small part of America’s mass incarceration problem. First, most people in jail or prison are not in for drug charges at all. According to the Prison Policy Initiative, around 21 percent of people in jail or prison are in there for a drug crime, including marijuana possession....

How many of the 21 percent of drug offenders are in for marijuana possession? Unfortunately, we don’t have good data for jails, where people are held before they’re convicted of a crime and for shorter sentences. We also don’t have good data for state prisons, where more than 87 percent of US prison inmates are held, based on federal data. But we do know that a minority of state prisoners are in for drugs: In 2015, 3.4 percent of all state prisoners were in for drug possession and 11.7 percent were in for other drug-related crimes. So only a fraction of prisoners are locked up due to drug prohibition in general, much less marijuana prohibition in particular.

We do have some good data for the federal system. According to the US Sentencing Commission, 92 of nearly 20,000 people — fewer than half a percent — sentenced for drug offenses during fiscal year 2017 were locked up due to simple possession of marijuana.

I am glad to see efforts to correct (all-too-common) claims that much of mass incarceration can be attributed to marijuana prohibition, and it is especially galling to see Boehner and Schatz suggest that a significant portion of persons are imprisoned for mere possession of small quantities of marijuana. That is not the reality now, nor has it ever been.

That said, as the arrest data highlight, a whole lot of people get entangled with the criminal justice system because of marijuana prohibition. And trafficking in marijuana (which becomes legal with marijuana legalization) has landed tens of thousands of people in US prison in recent decades. The latest data from the US Sentencing Commission, interestingly, shows that the number of persons federally prosecuted for marijuana trafficking dropped from 6792 in Fiscal Year 2012 to only 3381 in Fiscal Year 2016.  These data suggest to me that the era of marijuana legalization in the states has had a real impact on marijuana prosecutions (and imprisonment) at the federal level.

So while marijuana legalization (nor any other single reform) will alone fix mass incarceration, there is a basis to believe it could help a bit.  (Also, I must add that if former House Speaker John Boehner was sincerely concerned about the number of people in our state and federal penitentiaries, there is a lot more he should be doing besides now advising a marijuana company.)

April 16, 2018 at 05:39 PM | Permalink


About 11 million people are admitted by jails in a year. Not all of the 600,000 arrested for MJ possession are booked at a jail. At most 5% of the jail admissions are for MJ possession. Drug types and amounts have to be determined by a lab test and if the arrestee pleads guilty they probably don't bother with a lab test if the amount is small.

If there is a lab test then it may be possible to determine the type and amount from the sentencing report. 2014 data for Iowa prison inmates is available from sentencing reports for 64% of those inmates with drug as the most serious offense type. For drug trafficking the percentages were Cocaine 18.8%, Heroin 0.4%, LSD 0.3%, MJ 14.0%, Meth 65.1% and drug possession of MJ 1.3%. The high percentage for Meth in Iowa is not typical.

Very few people will believe these percentages because they have been told the prisons are overflowing with first time low level drug offenders.

Posted by: John Neff | Apr 16, 2018 6:55:46 PM

Not sure if we have too many people in prison or not. But strongly agree that marijuana should be legalized, and further that the war on drugs can't be won.

Posted by: William Jockusch | Apr 17, 2018 9:22:01 AM

The point isn't how many are incarecrated for marijuana. The point is how many are stopped, frisked and arrested on the basis of the officer "smelling the odor of marijuana." My local police department has amazing officers who can smell the odor of marijuana in a moving car with the windows rolled up from 100 feet away or more. And our courts believe them.

Posted by: defendergirl | Apr 17, 2018 2:16:07 PM

Arrests for possession of MJ do not improve public safety but they do provide revenue. It might help if all the revenue goes to the state and the local government gets nothing.

Posted by: John Neff | Apr 17, 2018 6:51:33 PM

I am unsure about the statistics, but I do believe that the majority of prisoners are made up of nonviolent offenders, which is probably why America has a larger prison population than even china. I also believe that if the drug war was ended and the so called "illegal drugs" were made legal and/or decriminalized, the prison population would plummet. However, I am sure if this were to happen the prison industry would find some way to replace the loss of numbers and profit by making something just as trivial a crime, in order to keep their prisons filled and profits high, as for profit private prisons have a vested interest in high crime and incarceration rates, which would in turn be considered a substantial conflict of interest.

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Posted by: AG | Apr 19, 2018 4:25:30 PM

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