The number of federal sentences for low-level marijuana possession has plummeted in recent years, thanks mainly to a dramatic drop in prosecutions of people arrested in Arizona. But prior state convictions for simple possession are still boosting federal penalties for other offenses by increasing the number of “criminal history points” considered under sentencing guidelines.
Under federal law, simple marijuana possession is punishable by a minimum fine of $1,000 and up to a year in jail. Federal charges have always accounted for a tiny share of marijuana possession cases, which typically are prosecuted under state law. But according to a recent report from the U.S. Sentencing Commission (USSC), federal courts sentenced just 145 defendants for simple marijuana possession in fiscal year 2021, down from 2,172 in FY 2014.
Most of these cases involved people caught with marijuana at or near the U.S.-Mexican border. The USSC says the downward trend was “largely driven” by cases in Arizona, which accounted for 79 percent of the total since FY 2014. Sentences in that state fell from 1,916 in FY 2014 to only two in FY 2021.
Among defendants sentenced in the previous five fiscal years, 86 percent were male, 71 percent were Hispanic, and 60 percent were not U.S. citizens. About 70 percent received prison sentences, which averaged five months.
The USSC attributes the 93 percent drop in simple possession cases since FY 2014 to an “evolving policy shift.” It mentions President Joe Biden’s mass pardon for low-level marijuana offenders 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.
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 79 percent of the prior sentences “were for less than 60 days in prison.” In effect, these defendants are punished again for marijuana possession, and the second penalty is more severe.