Bernie and Hillary's Marijuana Misconceptions

Both candidates seem to think our prisons are filled with pot smokers.


During the Democratic presidential debate in Las Vegas last week, Bernie Sanders, the socialist senator from Vermont, became the first major-party candidate to endorse marijuana legalization. Former Secretary of State Hillary Clinton, by contrast, stuck with a wait-and-see position, saying, "I think that we have the opportunity through the states that are pursuing recreational marijuana to find out a lot more than we know today." But both candidates seemed confused about marijuana's role in the war on drugs and its contribution to this country's world-beating incarceration rate.

Asked how he would vote on the marijuana legalization initiative that will be on Nevada's ballot next year if he lived in that state, Sanders initially said, "I suspect I would vote yes." Apparently encouraged by the applause that reply elicited, he made his answer firmer:

"I would vote yes because I am seeing in this country too many lives being destroyed for non-violent offenses. We have a criminal justice system that lets CEOs on Wall Street walk away, and yet we are imprisoning or giving jail sentences to young people who are smoking marijuana. I think we have to think through this war on drugs, which has done an enormous amount of damage. We need to rethink our criminal justice system. We've got a lot of work to do in that area."

Although Sanders did not say anything that was literally untrue, he left the misleading impression that many drug offenders in prison are pot smokers who were caught with a little weed. Picking up on that implication, Clinton made a statement that is clearly wrong:

"I agree completely with the idea that we have got to stop imprisoning people who use marijuana. Therefore, we need more states, cities, and the federal government to begin to address this so that we don't have this terrible result that Senator Sanders was talking about where we have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana."

About 300,000 people are serving time for drug offenses in state and federal prisons, which represents one-fifth of the total prison population. But only 15 percent of those drug war prisoners (around 45,000 people) are behind bars because of marijuana offenses, and those offenses typically involve cultivation or distribution. Hence it is clearly not true that prison sentences for "nonviolent, low-level offenses" (which include many property crimes as well as drug offenses) "are primarily due to marijuana," let alone possession of marijuana for personal use.

Yet the misconception that our prisons are filled with pot smokers is common enough that a few years ago the Office of National Drug Control Policy (ONDCP) devoted a 40-page pamphlet to refuting it. Presumably that belief is prevalent because marijuana, which is by far the country's most popular illegal drug, accounts for the lion's share of drug arrests in the United States (nearly half last year). But the vast majority of pot busts (nearly nine out of 10) involve simple possession, and people arrested for that offense generally do not spend much time in jail, let alone go to prison, which is reserved for offenders serving sentences of more than a year. Although some states continued to treat simple possession of marijuana as a felony as late as 2001, none does anymore.

Reformers who seek to "end the era of mass incarceration," as Clinton says she wants to do, need to understand the nature of the problem, which is not "primarily due to marijuana." Releasing every marijuana offender would barely make a dent in the prison population, which last year totaled 1.6 million. Even releasing all drug offenders, who represent 50 percent of federal prisoners but only 16 percent of state prisoners (a much bigger group), would still leave a lot to do. It would reduce the prison population to its level in the mid-1990s, following a dramatic increase that began a decade before then.

As illustrated by the ONDCP pamphlet, exaggerating marijuana's role in mass incarceration gives ammunition to prohibitionists, who cite such hyperbole as evidence that critics of the war on drugs don't know what they're talking about. It also undermines sentencing reform, since people who support lighter penalties while imagining a pot smoker serving hard time over a joint may change their minds when they realize the main beneficiaries are cocaine, meth, and heroin dealers. Maybe worst of all, invoking the mostly mythical travesty of imprisoned pot smokers confuses the public about what is actually wrong with pot prohibition.

It is beyond absurd that police in this country continue to arrest about 700,000 people a year for growing, selling, or (mainly) possessing something you can openly and legally buy in Denver or Seattle. Even when marijuana offenders do not receive jail or prison offenses, they suffer long-lasting ancillary penalties from their brushes with the law, which can have a serious impact on their educational and employment opportunities, in addition to the immediate humiliation, inconvenience, legal expenses, and loss of liberty associated with a criminal arrest. And 45,000 people in prison for marijuana offenses, serving terms as long as life, is 45,000 too many.

Americans finally seem to be recognizing the injustice of marijuana prohibition, which is presumably why Sanders felt comfortable returning to a position he originally took back in the 1970s, before he was a national politician representing an entire state and seeking his party's presidential nomination. Sanders' reversion is reminiscent of Barack Obama's poll-driven "evolution" on gay marriage, which in 2012 led him back to the view he had expressed 16 years before as a political novice running for the Illinois Senate.

Until last week, Sanders sounded a lot like Clinton on marijuana policy, saying he was interested to see what happens in the states where voters have approved legalization. By publicly admitting his support for legalization, he instantly became the pot-friendliest major-party presidential candidate. Even Sen. Rand Paul (R-Ky.), the most libertarian candidate in the Republican field, has declined to take a position on the merits of legalization, saying only that the federal government should not try to force pot prohibition on the states.

"This is the first time we've seen a major candidate for president say he'd probably vote for legalizing marijuana if given the chance," says Marijuana Majority Chairman Tom Angell. "That says a lot about how far the politics on this issue have shifted in a very short amount of time. As a point of reference, in 2008 no major candidate even supported decriminalization when asked in a debate, and our movement had to chase them around New Hampshire and repeatedly harass them just to garner pledges to stop federal raids on state-legal medical marijuana patients. Legalization is at the forefront of mainstream American politics, and politicians are starting to treat it as such."

This article originally appeared at Forbes.com.