Within the shifting legal cannabis landscape in the United States, expungement, advocacy and social equity are often on the lips of legislators, aiming to right the wrongs of the pervasive War on Drugs and its impacts on communities throughout the country. However, a new report published by the U.S. Sentencing Commission (USSC) shows there’s still much more work to be done regarding past convictions. 

Specifically, the report, titled “Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System” found the hundred of people received more serious federal prison sentences over the last fiscal year due to prior cannabis possession convictions, even though their states had since reformed their cannabis laws. 

It acts as an update on a 2016 Commission study, which examines sentences for simple possession by assessing trends in federal sentences for simple possession of cannabis since fiscal year 2014. The report additionally describes the demographic characteristics, criminal history and sentencing outcomes for federal offenders sentenced for cannabis possession in the last five fiscal years and compares these cases to federal offenders sentenced for the possession of other drugs.

The number of federal offenders sentenced for simple cannabis possession is relatively small and has declined over time since fiscal year 2014 to fiscal year 2021, from 2,172 to just 145 respectively, according to the report. Trends overall were driven largely by the District of Arizona, which accounted for nearly 80% of all federal cannabis possession sentences since 2014.

The USSC also noted that one reason for the overall decline was largely because of reduced enforcement in the District of Arizona.

“As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern,” the report says. “For federal offenders sentenced for any crime type, however, prior marijuana possession sentences—both federal and state—often affected their criminal history calculations under the guidelines.”

The federal offenders sentenced for cannabis possession over the last five fiscal years also tended to be male (85.5%), Hispanic (70.8%) and non-U.S. citizens (59.8%), and about 70% were sentenced to prison, with an average prison sentence of five months. As of January 2022, no offenders sentenced solely for simple cannabis possession remained in the custody of the Federal Bureau of Prisons, according to the report.

The report also examines how prior sentences for simple cannabis possession, under both federal and state law, affect criminal history calculations under the federal sentencing guidelines for new federal offenses.

Over the 2021 fiscal year, 4,405 federal offenders (8%) received criminal history points under the federal sentencing guidelines due to prior cannabis sentences. Nearly 80% of those prior prison sentences were less than 60 days, and 10.2% of those offenders had no other criminal history points. For 1,765 of the 4,405 offenders (40.1%), the criminal history points assigned under the federal sentencing guidelines resulted in a higher criminal history category.

A whopping 97% of cannabis possession priors were state convictions, including prior convictions from states that have since decriminalized cannabis (22%), legalized cannabis possession (18.2%), allowed medical cannabis (15.1%), facilitated expungements (19.7%) or a combination multiple policy changes. 

The report also reveals that, of the 765 offenders whose criminal history was impacted by prior cannabis possession sentences, most were male (94.2%), U.S. citizens (80%) and either Black (41.7%) or Hispanic (40.1%).

Authors admit that cannabis policy seems to be shifting in the U.S., despite the plant’s continued Schedule I status under the Controlled Substances Act, noting President Joe Biden’s issuance of a mass cannabis pardon in October 2022, invitation for state leaders to embrace similar actions within their jurisdictions and prompt for further administrative review into the scheduling of the drug.

The year started off strong in this regard, with Connecticut erasing 42,964 cannabis convictions as of January 1, according to a tweet from Gov. Ned Lamont. A new Ohio bill recently signed by Gov. Mike DewWine similarly will allow cities to facilitate mass expungements for people with certain drug-related convictions, including cannabis possession up to 200 grams.

The USSC said last year it is considering amendments to guidelines surrounding whether, and to what degree, a person’s criminal history for cannabis possession can impact sentencing decisions for new convictions. While the Commission indicated the review is a “priority,” further action is still needed, though this new data could help to push new policy forward.

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