Explaining His Cannabis Conversion, John Boehner Cites a Marijuana Myth

Contrary to what many supporters of legalization seem to think, prisons are not overflowing with pot smokers busted for possession.


Anthony Behar / Sipa USA / Newscom

Former House Speaker John Boehner's announcement that he has joined the board of a cannabis company provoked considerable grumbling from antiprohibitionists who noted that he could have done a lot more to advance the cause if he had backed it before leaving Congress. But the Ohio Republican and his critics agreed that his belated conversion puts him on the right side of history. They also agreed about something that is not true: Pot prohibition has filled America's prisons with marijuana users busted for possession.

"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," Boehner said. "We have literally filled up our jails with people who are nonviolent and frankly do not belong there."

Not so long ago, Cory Doctorow noted at Boing Boing, Boehner said he was "unalterably opposed to the legalization of marijuana." Doctorow faulted Boehner for supporting a policy that led to "the criminalization, imprisonment and ruination of millions of Americans." At Think Progress, Alan Pyke called attention to "the tens of millions of people, most of them black and Latinx, who've been sent to prison behind the pigheaded prohibitionism that Boehner helped uphold during his many years in office."

Boehner, Doctorow, and Pyke seem to be conflating arrests for marijuana offenses, which are common, with prison sentences for marijuana offenses, which are not. Between 1990 and 2016, according to the FBI's numbers, police in the United States made more than 18 million arrests for marijuana offenses, an average of about 667,000 a year. But the vast majority of these busts (90 percent in 2016) involved simple possession, as opposed to cultivation or sale. Americans arrested for simple possession typically do not spend much time in jail, let alone go to prison, which is reserved for people serving sentences longer than a year.

According to the National Organization for the Reform of Marijuana Laws, Arizona is the only state that still classifies first-time offenders charged with simple possession of small amounts as felons. Technically, possessing less than two pounds for personal use is a Class 6 felony, punishable by four months to two years in jail or prison. But a 1996 ballot initiative banned incarceration as a punishment for the first or second such offense, requiring probation instead. In Wisconsin, subsequent offenses are felonies. The rest of the states treat low-level possession offenses as misdemeanors at most.*

"The number of people in our state and federal penitentiaries who are there for possession of small amounts of cannabis," in other words, is pretty small. During the George W. Bush administration, the Office of National Drug Control Policy calculated that people convicted of simple possession (and no other offense) accounted for 0.7 percent of state prisoners in 1997. Even if you include cultivation and distribution, marijuana offenders represent a small share of state and federal prisoners—something like 3 percent, or about 45,000 people.

Since the number should be zero, that is hardly cause for complacency. Furthermore, all those millions of misdemeanor marijuana arrests over the years have taken a toll that goes far beyond time spent behind bars, including humiliation, legal expenses, inconvenience, lost income, and long-lasting ancillary penalties. The fact that the distribution of those burdens is racially skewed (as Pyke correctly notes) compounds the injustice.

Still, it is not accurate to say that "tens of millions of people" have been "sent to prison" because of pot prohibition, even if we go all the way back to the Marihuana Tax Act of 1937. Penalties may have been more severe, on average, prior to 1990, but there were far fewer arrests each year. Nor is it true that people busted for simple possession (or even marijuana offenders generally) represent a large share of state and federal prisoners.

That misconception seems to be fairly common among politicians who are newly sympathetic to sentencing reform or marijuana legalization. You may wonder whether it matters that people like John Boehner, Hillary Clinton, and Bernie Sanders have a grossly inflated notion of how many marijuana users are serving time in prison, as long as they support the right policies. But it is worth setting the record straight, since defenders of prohibition tend to seize upon such misrepresentations as a way of discrediting their opponents and suggesting the war on weed is not so bad after all. Even if legalizing marijuana will not do much to address the problem of mass incaceration, it is still morally mandatory.

[*I have corrected this passage to note the possibility of felony charges for possessing small amounts of marijuana in Arizona and Wisconsin.]

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  1. “”prisons are not overflowing with pot smokers busted for possession.”‘

    Yep. There’s always more to the story.

  2. Get the facts first. You can distort them later.
    – Mark Twain

    1. Don’t believe everything you read on the Internet, not even supposed quotes.

      – Abraham Lincoln

      1. You can fool all of the people most of the time.

        – Abraham Lingoln’s second cousin twice removed.

  3. So he stopped doing the wrong thing for the wrong reasons, and is now doing the right thing for different wrong reasons? Is that the problem here?

    1. He’s a politician, so it’s wrong reasons all the way down.

      Look at it this way, a political will be wrong at a rate greater than random chance.

    2. Would we describe this as “a problem”?

      People do almost everything they do for arguably bad reasons. Sullum is just trying to keep the facts straight.

  4. They may not be in prison, but they are paying huge fines and are often under the onerous limits of probation.

    0 is indeed the target number.

    1. And they are forced to subsidize a giant parasitical industry of “therapists” to therapeutracize us all day about how terrible we are to want to smoke pot, and then after we convicted pot fiends are forced by Government Almighty, to pay our nannies and ninnies to tell us to not smoke pot, our nannying, ninnying therapists go home and secretly smoke pot! These nannys and ninnies could, instead, be doing something productive, even if it is nothing but scratching my ass for me. But Nooooo… They have to go and be Government-Almighty-enabled parasites!

  5. “Even if you include cultivation and distribution, marijuana offenders represent a small share of state and federal prisoners?something like 3 percent, or about 45,000 people.”

    I see what you’re saying about being honest about the statistics, but is jail time really the only offense for such a conviction? It would seem that having that on your record alone is really the biggest penalty.

    1. Got a drug conviction? No student loans for you. No military or government employment for you. No government contractor jobs for you. Probably affects professional licenses as well. And who knows what else.

      1. No traveling to Canada.

        1. Okay, but we really should limit the discussion to penalties.

    2. It is true, and he may be underselling the advantages here. I think the point he’s making is that we vastly overestimate the effect weed has on our over-incarceration problem, and legalizing weed is often sold as a simple and magical solution that will greatly reduce our prison system and fix our criminal justice system. This distracts people from analyzing and studying the actual reasons for our over incarceration, which are unfortunately quite complex.

      I don’t think you’ll find anybody at Reason who doesn’t think legalizing marijuana isn’t a big deal and there are a thousands reasons to do it.

      Reason is just intellectually honest and calls out bullshit on both sides, and unlike either major party, libertarians have been vehemently and consistently opposed to the Drug War and most of the things driving mass incarceration for decades.

      1. I would have thought it was a lot bigger problem that less than one percent. What if you include “intent to distribute”?

        I know that for some drugs, a reasonable personal stash can be classified as “intent to distribute” by statute.

    3. He addressed that in the third-to-last paragraph.

  6. I want weed (and all drugs) to be legalized as much as anybody, but there is just as much bad science and misinformation on the pro-weed side as the anti-weed side, and it bothers me. Things like this, saying millions of people are in prison for weed, makes it harder to address the real issues driving mass incarceration. Likewise with medical marijuana. Studies have shown it has a moderate pain relief effect, and can be a good substitute for opioids and OTC pain medication in some instances. It also can help people with a rare kind of seizure-inducing condition.

    However, anybody who tells you weed cures cancer is full of shit. Weed does not cure any disease. There is zero evidence for 90% of the claims I see from my pothead friends and bullshit on Facebook about it being magic. When arguing for a position, you need to be sure to stick to the facts. Even if you’re on the right side, using misleading statistics and bullshit only keeps people from changing their minds.

    Marijuana legalization will not be some magic easy solution to our mass incarceration and drug problems. It will likely have a pretty tiny effect. Likewise, weed will not usher in a new era of natural medicine and cancer cures. It will likely help a small percentage of the population with their pain management.

    There are plenty of good reasons to legalize weed without having to resort to exaggerations and hyperbole, which often do more harm than good.

    1. This. My dog currently has terminal cancer and legalization in California has allowed me to purchase RSO Oil for her. It won’t cure her cancer but it definitely gives her relief at night and allows her to sleep well, it may also have the added benefit of extending her life for a short amount of time (more research is needed to confirm this). I feel very blessed to have something that noticeably makes her more comfortable. It really pisses me off when I see all of these crazy claims about weed curing cancer, depression, anxiety, etc. It can be very effective for some ailments, and obviously more research is desperately needed, however the fantastic claims of miracle marijuana are horribly counter productive and give false hope to many desperate people.

  7. Thank you, Jacob.

    That’s the kind of objective look I want to see from Reason. (Did in the past, less so recently)

    Good job

  8. The total amount of marijuana offenders in prison at any particular time might only be 3%. But that’s partly because prison sentences for majiuana offenses are shorter than other sentences. Prisoners are being discharged as new ones come in.

    Suppose you have a hypothetical prison with 97 murders in for life and 3 marijuana offenders in for six months. Every six months the 3 marijuana offenders are released and replaced with three new ones. After 17 years the total amount of marijuana offenders who have been imprisoned will exceed the total number of murderers imprisoned, even though the percentage imprisoned at any one time is only 3%.

    This is a big cause for concern if you believe that being in prison has negative effects that persist after release. Even though the amount of people imprisoned at any one time is small, the amount of people exposed to prison is huge,

  9. Hello everybody! It’s time for another exciting episode of Stupid or Liar! Today’s contestant is former House Speaker, famous Orange Man, and prolific crybaby… John Boehner!!!

  10. No chance Boehner is just a hired gun to help this company navigate OH’s politics and MMJ legislation/regulation. He surely has the dankest power connections in the state. Hard to tell through all this smoke.

  11. If Boehner was honest, he would just wave a fat stack of hundreds from his new lobbying gig to explain his conversion.

    1. If conversions are suspect or not valuable, then why do we want to keep “getting the word out” on any issue if we aren’t going to celebrate real or apparent changes of mind?

  12. “Latinx”? Doesn’t “Latini” work?

  13. “Latinx”? Doesn’t “Latini” work?

    1. I love how American progressives are trying to fundamentally transform a 1000-year old language that isn’t even the main language of the country.

    2. That’s such a strange phrase, that I have never met any native Spanish person who actually uses that.

  14. You may wonder whether it matters that people like John Boehner, Hillary Clinton, and Bernie Sanders have a grossly inflated notion of how many marijuana users are serving time in prison, as long as they support the right policies.

    They don’t have a grossly inflated notion because they don’t have any notion at all. They could not care less about reality or doing the right thing. They just want a way to avoid looking like total hypocrites once political reality forces them to update their reflexive desire to control people.

  15. Boehner said. “We have literally filled up our JAILS with people who are nonviolent and frankly do not belong there.”

    …Between 1990 and 2016, according to the FBI’s numbers, police in the United States made more than 18 million arrests for marijuana offenses, an average of about 667,000 a year. But the vast majority of these busts (90 percent in 2016) involved simple possession, as opposed to cultivation or sale.

    I understand the article is about not confusing the prision population with the jail population, but the quote actually sais jail. Also how many people are in prision that were sent to trial with posession as the excuse for probable cause that then lead to firearm, manufacturing, transporting etc. or any other charges that would not be illegal if pot was legal? I susspect the real number of prision inmates based on pot prohibition is much larger than 3%

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  16. How many people are in prison for violating probation or parole just for possessing or using the devil weed?

    1. Too many, but a small percentage of the overall prison and jail population. Legalized weed will only make a small dent in our over incarceration problem. It is important to acknowledge this because the people who point to this as a significant cause of our prison numbers only distract from trying to understand the actual underlying issues. This is sometimes just misguided optimism, but it is often deliberate obfuscation to score political points and avoid having to address complicated things that don’t fit certain narratives.

      1. But let’s not forget that, as was mentioned in previous comments, the consequences of being prosecuted for marijuana can be life-wrecking even when they don’t include prison. “Decriminalization” has been a disappointing sham in most places.

  17. Marijuana prohibition is dead!

    “Trump pledges to support legal marijuana, in a blow to Attorney General Sessions”

    April 13, 2018…..-1.3932441

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