Pot Possession Cases Have Plummeted in Federal Courts, but Prior Marijuana Convictions Still Boost Penalties

Federal sentences for simple marijuana possession dropped by 93 percent over seven years.

The number of federal sentences for simple marijuana possession has declined dramatically in recent years, from 2,172 in fiscal year 2014 to just 145 in FY 2021, according to a new report from the U.S. Sentencing Commission (USSC). But prior state convictions for simple possession are still boosting federal penalties by increasing the number of "criminal history points" considered under sentencing guidelines, which resulted in higher recommended ranges for 1,765 defendants in FY 2021.

The USSC report confirms the minimal impact of the mass pardon for low-level marijuana offenders that President Joe Biden announced in October. It shows that federal charges represent a tiny share of simple possession cases. While 2,172 federal defendants received sentences for simple marijuana possession in FY 2014, for example, nearly 620,000 people were arrested for marijuana possession in the United States that calendar year. Among all federal defendants sentenced in FY 2021, state cases accounted for 97 percent of prior marijuana possession convictions.

Even in the context of federal cases, Biden's pardon did not free a single prisoner. "As of January 2022," the USSC notes, "no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons."

People caught with marijuana at or near the U.S.-Mexican border account for most federal simple possession cases. "The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014," the USSC reports. Cases from Arizona plummeted between FY 2014 and FY 2021, from 1,916 to just two.

Marijuana possession defendants were overwhelmingly male (86 percent) and Hispanic (71 percent), and 60 percent were not U.S. citizens. Seventy percent received prison sentences, which averaged five months. The maximum federal penalty for simple marijuana possession is a $1,000 fine and one year in prison.

The USSC attributes the 93 percent drop in simple possession cases since FY 2014 to an "evolving policy shift." It mentions Biden's mass pardon and notes that the Justice Department "generally has treated marijuana possession offenses as a low enforcement priority in recent years." But the downward trend that the report describes predates the pardon, and federal sentences for simple marijuana possession were falling precipitously before Biden took office, beginning at the end of the Obama administration and continuing through the Trump administration.

The report also considers how prior simple possession convictions affect federal defendants charged with other crimes. In FY 2021, 4,405 federal offenders "received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences." Those points put 1,765 defendants in a higher criminal history category, which figured in the sentences they received. More than four-fifths of those defendants were black or Hispanic.

Moving a defendant to a higher criminal history category raises the recommended sentencing range. The "offense level" for someone charged with drug trafficking involving less than 10 grams of heroin, less than 50 grams of cocaine, or less than half a gram of methamphetamine, for example, would be 12. If he fell into criminal history category I, the recommended sentencing range would be 10 to 16 months. Each step up in his criminal history category would add a few months to the lower and upper ends of that range, maxing out at 30 to 37 months with 13 or more criminal history points.

While the impact of a prior marijuana possession conviction might amount to just a few more months behind bars, that additional punishment could easily exceed the penalty imposed in the state marijuana case. The USSC reports that "most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences." In effect, these defendants are punished again for marijuana possession, and the second penalty is more severe.

That phenomenon should become less common as more states decriminalize or legalize marijuana possession. Of the 4,405 federal defendants who received criminal history points based on marijuana possession convictions in FY 2021, 1,804 were convicted in states where possession of small amounts is no longer a criminal offense. Expungement of state marijuana records also can be expected to affect federal sentencing. The USSC reports that "933 offenders were assigned points for prior marijuana possession sentences from states that have expungement or sealing laws for marijuana possession records."

Nationwide, the number of marijuana arrests, the vast majority of which involve possession rather than manufacture or sale, fell by 18 percent in 2019 and 36 percent in 2020. The 2020 total was the lowest seen in three decades. It looks like marijuana arrests fell again in 2021. But it is hard to tell by how much because changes in the FBI's reporting system resulted in substantially less participation by police departments.