It is a Myth That Small Time Marijuana Users are Crowding our Prisons

Another chief argument for the decriminalization or legalization of marijuana is that a major chunk of criminal justice resources is used up to prosecute petty marijuana offenders, mainly users (Thomas 1999). Legalizers claim that ending the war on marijuana would free up much needed prison space and police time (e.g. Nadelmann 1989).

The real picture is, however, much different than the one painted by marijuana sympathizers. The truth is that most marijuana users are never caught by law enforcement. The ones that do get apprehended are usually large-scale offenders. According to the most recent survey of inmates in state and federal correctional facilities, only 0.7% of those in state prison are there for marijuana possession. And for first time offenders that number drops to 0.3% (U.S. Department of Justice 2000).

Of the 7,401 marijuana offenders in federal prison in 2002, only 191 of them were there for simple possession (U.S. Sentencing Commission 2002).  Federal marijuana offenders served an average of 33 months in prison, the lowest of any other drug (U.S. Sentencing Commission 2002).  Additionally, the median amount of marijuana for those convicted of marijuana possession is 115 pounds -- or 156,000 marijuana cigarettes (U.S. Department of Justice 2000).  The U.S. government convicted only 27 federal marijuana offenders (possession and trafficking) having less than 5,000 grams of marijuana, with an average of 3,906 grams -- about 12,000 joints (U.S. Sentencing Commission 2002).

Groundbreaking work by Caulkins and Sevigny (2005) confirm the case that mainly only federal government sources had thoroughly presented before. They analyzed data from the Survey of Inmates in Federal and Correctional Facilities and found that the “number of marijuana users in prison for their use is perhaps 800-2,300 individuals or on the order of 0.1-0.2% of all prison inmates,” (Caulkins and Sevigny 2005) making it consistent with prior analysis released by the Office of National Drug Control Policy (ONDCP 2005). They estimated that expected time served in prison per year of use for marijuana was a miniscule .04 days.

The most often cited criminal justice statistic by legalizers is that, according to the FBI’s Uniform Crime Reports (UCR), authorities arrest over 700,000 people a year for marijuana (Nadelmann 1989). This figure at first glance seems high, especially because the total number of drug offenses is roughly 1.5 million (U.S. Department of Justice 2003). But a closer look reveals that the UCR numbers are a poor measure to gauge criminal justice outcomes. First, and perhaps most importantly, the report states, in fine print found in the appendix, that “an individual may be arrested several times during the year, so the arrest figures in this section should not be viewed as an annual accounting of the number of persons arrested, but rather, as the number of arrests reported by law enforcement.”  So, the number of different people arrested for pot (or other drug violations for that matter) is completely unknown. All we might know is the number of actual arrests a year -- and since marijuana offenders usually do not typically get thrown in jail, it is quite possible that one person would be arrested several times in one year.

The proposition that the UCR even gives us an accurate number of total arrests a year is questionable. The UCR simply combines different jurisdictions (which have different data collection methods) into one number, giving us an arbitrary figure for “arrests.” Additionally, arrest patterns vary widely among different, local law enforcement agencies -- as seen, for example, in the varying sentencing schemes across the country for marijuana (e.g. marijuana is decriminalized in 12 states).  

Finally, the UCR is unhelpful because the term “arrest” itself could mean a few very different things, including a citation (ticket) or summons -- the former often invoked for simple marijuana possession. Arrest, per se, is an arbitrary term with different meanings and different applications throughout the country. Additionally, if one person is arrested for multiple violations simultaneously, only the “most serious” offense is reported to the FBI -- causing significant undercount or overcount (whichever you prefer) for actual drug arrests. Using UCR arrest data tells us little about the certainty, severity, or actual application of drug control laws.

Local Jails

In July of 2004, the Bureau of Justice Statistics released for the first time in six years a profile of local jail inmates, covering the year 2002. It revealed the number of inmates held for drug law violations rose by about 40,000 during those years, although drug violations were still just under violations for public order and violent offenses -- to be fair, they each hovered around 25% (public order violations rose by 30,000; violent offenses rose by 24,000). And of the drug offenders in jails, they were about equally distributed for possession and trafficking (10.8% and 12.1%, respectively). A 40,000 rise in the number of drug violators, however, is no small number. This resulted because there was a steep increase from 1996 to 2002 in the time served for drug traffickers -- not possessors (from 29 to 50 months). In fact, the average time drug possession inmates expected to serve in jail was 6 months, for traffickers it was 16 months. Note that these local jail figures are for all drugs, not just marijuana, but that 58% of all inmates used marijuana regularly (James 2004).

It appears, then, that the state and federal anti-marijuana effort is not targeting kids in college dorm rooms, but rather large scale marijuana traffickers. Ironically, Daniel Polsby, who favors marijuana legalization, sums it up best when he writes: “…despite well-publicized declarations to the contrary, there is very little worthwhile evidence that the current prison population of drug offenders contains any appreciable fraction of temperamentally inert flower children, ensnared by happenstance in the war on drugs” (Polsby 1997).