by David G. Evans, Esq.
Drug legalization advocates claim that prisons are overflowing with people convicted for only simple possession of marijuana. This claim is aggressively pushed by groups seeking to relax or abolish marijuana laws. A more accurate view is that the vast majority of inmates in prison for marijuana have been found guilty of more than simple possession. They were convicted for drug trafficking, or for marijuana possession along with other offenses. Many of those in prison for marijuana entered a guilty plea to a marijuana charge to avoid a more serious charge. In the US, just 1.6 percent of the state inmate population were held for offenses involving only marijuana, and less than one percent of all state prisoners (0.7 percent) were incarcerated with marijuana possession as the only charge. An even smaller fraction of state prisoners were first time offenders (0.3 percent). The numbers on the US federal prisons are similar. In 2001, the overwhelming majority of offenders sentenced for marijuana crimes were convicted for trafficking and only 63 served time for simple possession. [FN1]
Plea Bargains Distort the Picture
The standard practice in drug cases is for the offender to be given the opportunity to plead guilty in exchange for lighter punishment thus sparing the taxpayers the expense and risk of a trial. If the offender is only charged with one crime, the prosecutor will typically offer a shorter sentence to a lesser charge. If the offender has multiple charges, the common practice is to dismiss one charge in exchange for a guilty plea to another lesser charge, especially if the government feels the offender can provide valuable assistance to law enforcement by providing information on drug trafficking.
Drug legalization advocates claim that nearly one-third of all federal drug defendants are charged with marijuana offenses. [FN2] However, only a tiny percentage of that number are actually convicted for marijuana possession. [FN3]
There are a number of circumstances under which a simple-possession marijuana offender might receive a sentence to prison. For example, this may happen if:
1. the marijuana offense was committed while the offender was on probation or parole;
2. an offender charged with a more serious crime pleads guilty to the lesser offense of marijuana possession but as part of a plea bargain is required to serve a prison sentence;
3. the offender has a criminal history, particularly one involving drugs or violent crime;
4. the violation took place in a designated drug-free zone (such as on school property); or
5. the marijuana sentence runs concurrent with the sentence for one or more other offenses;
How Much Marijuana Did the Average Offender Possess to Get a Prison Sentence?
According to US Bureau of Justice Statistics estimates based on a survey of federal prisoners, the median amount of marijuana involved in the conviction of marijuana-only possession offenders was 115 pounds. [FN4] This is far more than is needed for personal use.
[FN1] Who’s Really in Prison for Marijuana?, Office of National Drug Control Policy,
www.whitehousedrugpolicy.gov; Substance Abuse and Treatment, State and Federal Prisoners, 1997,” BJS Special Report, January 1999, NCJ 172871; Unpublished BJS estimates based on the 1997 Survey of Inmates in State and Federal Correctional Facilities, National Archive of Criminal Justice Data; Prison and Jail Inmates at Midyear 2002, Bureau of Justice Statistics Bulletin, April 2003, NCJ 198877; Prisoners in 2002, Bureau of Justice Statistics, July 2003, NCJ 200248; Who’s Really in Prison for Marijuana?, Office of National Drug Control Policy, www.whitehousedrugpolicy.gov
[FN2] Pot Violators Comprise Largest Percentage of Federal Drug Offenders, Department of Justice Study Shows, NORML News, August 30, 2001; Who’s Really in Prison for Marijuana?, Office of National Drug Control Policy, www.whitehousedrugpolicy.gov
[FN3] US Sentencing Commission’s 2001 Sourcebook of Federal Sentencing Statistics; Who’s Really in Prison for Marijuana?, Office of National Drug Control Policy, www.whitehousedrugpolicy.gov
[FN4] Who’s Really in Prison for Marijuana?, Office of National Drug Control Policy, www.whitehousedrugpolicy.gov
David G. Evans, Esq., is Senior Counsel for the Cannabis Industry Victims Educating Litigators (CIVEL) who educate lawyers on how to make the marijuana industry accountable to their many victims. Mr. Evans was a plaintiff’s litigator in personal injury and employment law cases. Attorneys who desire more information can contact Mr. Evans at [email protected]. The CIVEL website is: www.civel.org
Learn more about this issue: What You Don’t Know About Mass Incarceration