Legalization & the Unjust Prison System

Right now, 7% of all inmates in state prisons are there solely for possession of marijuana. 

Closeup of Hand going through Prison Bars Source: Shutterstock

For decades, America’s prisons filled up with people convicted solely of having marijuana on hand. As more states move to decriminalize or legalize the drug, lawmakers are also rethinking the prison system.

Other than the arguments over morality and equality in the prison system as it relates to weed, there are other ways America would benefit from freeing those convicted of non-violent cannabis crimes and halting any prosecution of it.

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The High Cost of Cannabis Enforcement

In 2018, the Pew Research Center says 663,000 people in the United States were arrested for marijuana-related crimes. 92% of those arrests, or 609,960 of them, were for solely possessing the drug; not selling or manufacturing it. The vast majority of those arrests were of recreational users, not dealers.

Each arrest costs between $1,000 to $5,000 which means the United States spent between $600,000,000 and $3,000,000,000 that year just to put marijuana users in cuffs. And that’s just the financial cost – there isn’t a measure on how much it costs citizens in the long run that their police officers are diverted from more serious crimes because they’re focused on making arrests for drug crimes.Prison isn’t free, either. It costs taxpayers about $30,000 to $35,000 a year to keep inmates incarcerated.

The Solutions

Even with the nation leaning gradually more and more toward favorable views on legalization, people are still being carted off in handcuffs every day after being caught with the drug. Many bills hoping to legalize recreational cannabis include language that would free people serving time for things that will no longer be considered crimes.

For example, Cook County State Attorney General Kimberly Foxx filed a motion to vacate more than 1,000 low-level cannabis convictions a month before Illinois’ legal adult-use law kicked in.

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Democratic Presidential Nominee Joe Biden and Vermont Senator Bernie Sanders released a joint policy recommendation, saying marijuana should be decriminalized federally. 

Decriminalization isn’t the same thing as legalization. If the product is decriminalized, it would still be illegal to possess the drug, but small violations would be civil infractions, rather than crimes that could land you in jail. The Biden-Sanders document says states should be allowed to make their own decisions about legalization of adult-use marijuana. Even in states where cannabis is legal for recreational use, people can still be charged with crimes if they are found in possession of more than the legal limit, are growing more than is allowed, or are selling it on the black market.

That policy plan also includes notes on getting people with marijuana convictions out of jail and prison: 

“All past criminal convictions for cannabis use should be automatically expunged. And rather than involving the criminal justice system, Democrats support increased use of drug courts, harm reduction interventions, and treatment diversion programs for those struggling with substance use disorders.”

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Changes like those are only necessary because of the astounding number of people serving time for cannabis convictions. The War on Drugs can be blamed for that. People of color are disproportionately arrested for drug crimes. The difference is massive. The American Civil Liberties Union even went so far as to call the Drug War the “New Jim Crow.” 

The Disproportional Effect on People of Color

In 2001, at the height of that “tough on crime” push against drugs, the NACLA published an article called the Report on America. In it, the group says, “We are incarcerating African-American men at a rate approximately four times the rate of incarceration of black men in South Africa under apartheid.”

Between 2001 and 2010 in the United States, Black people were nearly four times more likely to be arrested for marijuana possession than white people, though the two racial groups have approximately equal use of the drug. In some states, that “four times” statistic is actually 8, 10, or in one case 15 times more likely.

In 2018, 59% of people in federal prison for cannabis convictions were Hispanic, despite that racial group making up 18.1% of the population that year. In 2017, Black people made up 27% of arrests for drug crimes, though that minority represents just 13.4% of the population.

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Leading up to the 2017 International Drug Policy Reform Conference, the Drug Policy Alliance explained more about how and why People of Color are discriminated against in enforcement of drug laws:

“Higher arrest and incarceration rates for these communities are not reflective of increased prevalence of drug use, but rather of law enforcement’s focus on urban areas, lower income communities and communities of color.”

Lives Ruined Over Non-Violent Crimes

Thanks to the Three Strikes Law, many people have life sentences for marijuana crimes. The law increased the punishment for people who were convicted of anything past two serious felonies, placing a mandatory state prison sentence of 25 years to life. The problem is, that third strike could be something like petty theft or possession of a small quantity of marijuana. 

A Black man named Michael Thompson is a quarter century into a 40- to 60-year sentence for selling 3 pounds of marijuana to a police informant in Michigan. Following that arrest, police found guns on his property, and that was his third strike. Even though recreational pot use has been legal there since 2018, Thompson still sits in prison. That’s despite the Obama administration’s attempts to keep federal prosecutors from instituting mandatory minimums for low-level, non-violent offenders. Attorney General Jeff Sessions did away with that guidance.

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Progress in the private prison industry has been slow to adjust to things that are no longer considered crimes. The ratio of arrests for possession has gone up; in 2011, 87% of cannabis arrests were for possession. In 2020, people in prison for drug crimes are going down steadily, but not at the rate you might expect. Right now, 7% of all inmates in state prisons are there solely for possession of marijuana. 

Senator Corey Booker’s Marijuana Justice Act, which is co-signed by most other high-profile Democrats, hopes to remove marijuana from the federal government’s Controlled Substances Act altogether and expunge convictions for marijuana offenses. It would also ensure certain federal funds don’t make their way to states that are found to be discriminatory in their enforcement of cannabis laws.

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