Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, March 26, 2020

Noticing post-reform pattern of federal marijuana prosecutions ... and realizing what it really tells us about the modern drug war

Screen-Shot-2020-03-24-at-7.30.34-AM-1024x668Over at my sentencing blog, I noted here that the US Sentencing Commission this week released its national yearly data on federal sentencing for Fiscal Year 2019.  I am extremely pleased to see that Kyle Jaeger at Marijuana Moment has already drilled into this data in this post titled "Feds Prosecuted Even Fewer Marijuana Cases In 2019 As More States Legalize, New Data Shows."  Here are excerpts:

Federal prosecutions for marijuana trafficking declined again in 2019, and drug possession cases overall saw an even more dramatic decline, according to a new report published by the U.S. Sentencing Commission on Monday.

While drug cases still represent the second most common category of crimes in the federal criminal justice system, the data indicates that the bulk of those instances are related to methamphetamine trafficking, which has steadily increased over the past decade.

But for marijuana, a different kind of trend has emerged.  As more states have moved to legalize cannabis, federal prosecutions have consistently declined since 2012.   To illustrate the shift, marijuana trafficking cases represented the most common drug type that was pursued in 2012, with about 7,000 cases.  As of fiscal year 2019, those cases are now the second least common, with fewer than 2,000 cases.

Notably, the year of that peak, 2012, was when Colorado and Washington State became the first to legalize for recreational purposes.  Though the report doesn’t attempt to explain why cannabis cases are on the decline, advocates have postulated that state-level marijuana reform has helped curb illicit trafficking by creating a regulated market for consumers to obtain the products. “Twenty-five percent of the public now live in jurisdictions where the sale of marijuana to adults is legal,” Justin Strekal, political director of NORML, told Marijuana Moment. “Of course there will be a corresponding drop in the number of illegal sales.”

Another possibility is that evolving public opinion and state policies have contributed to a shift in perspective among prosecutors, who may no longer wish to prioritize enforcing cannabis prohibition in the era of legalization.  While all marijuana sales — even in states with legalization laws — remain federally prohibited, the Trump administration has in practice continued the Obama-era approach of generally not interfering with the implementation of local policies even though then-U.S. Attorney General Jeff Sessions formally rescinded a memo on the topic from the prior administration.

In any case, the new U.S. Sentencing Commission report also shows a broader decline in drug possession cases in general. In fact, the most significant reduction in crime category for 2019 was drug possession, which fell from 777 federal cases the previous year down to 563 — a 28 percent drop....  While marijuana trafficking cases decreased, the average sentence for a conviction increased by two months, from 29 to 31.  Overall, drug trafficking prosecutions did increase by about 1,000 cases in 2019, though again that’s largely attributable to an increase in methamphetamine-related prosecutions.

This discussion of new federal data — particularly the notion that state-level marijuana reforms "helped curb illicit trafficking by creating a regulated market for consumers to obtain the products — elides the important reality that ALL state-legal marijuana stores are stilled engaged in "illicit trafficking" under federal law.  I stress this point because there are more than 10,000 federally-illegal (and state-licensed) marijuana businesses in just the states of California and Oklahoma alone.  Save for limits in a spending rider (which Prez Trump has sought to disavow), the US Department of Justice could decide to prosecute many thousands of the out-in-the-open marijuana dealers (most of whom have given states all their marijuana dealing plans in writing in order to get a state license).

I make this point because I mean to stress that the major decline in federal marijuana prosecutions over the last decade does not demonstrate that there are fewer federal marijuana crimes taking place in the US.  Rather, it seems clear that there are now many more, and many more obvious, federal marijuana crimes taking place in the US, and there is also reason to fear that "fully illicit" marijuana activity (dealing that does not even comply with state laws) may not be in decline in any way.  And yet we see this marked decline in federal marijuana prosecutions simply because federal prosecutors, quite soundly in my view, simply believe it is an ever-less-good use of their time to be prosecuting all the marijuana offenders who continue to grow their drug-dealing businesses in plain view.  

https://lawprofessors.typepad.com/marijuana_law/2020/03/noticing-post-reform-pattern-of-federal-marijuana-prosecutions-and-realizing-what-it-really-tells-us.html

Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink

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