Spotlighting DOJ support for proposed guideline amendment suggesting downward departure for criminal history involving marijuana possession

The folks over at Marijuana Moment have this effective new piece, headlined "Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions More Leniently," that flags the support from DOJ for a not-insignificant small proposed amendment to the federal sentencing guidelines criminal history rules.  Here are excerpts (with links from the original):

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.  Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”...

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance....  Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”...

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.  The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”  The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”...

USSC separately released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.  While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

Some prior recent related posts:

• US Sentencing Commission publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"
• US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"