The American public is infinitely aware that there is a gap in social justice when it comes to the imprisonment of individuals for marijuana possession, production, or distribution. The social shift comes at a critical time, when the American justice system acknowledges a significant problem with prison overcrowding, as well as the increased costs associated with long-term incarceration of citizens charged with nonviolent criminal possession.

Part of the current social backlash from the public results from the legalization of marijuana use for recreational and medicinal purposes in 50 percent of U.S. states. While possession of recreational quantities may earn a citizen a fine of $500 to $1,000 and a misdemeanor charge, growers are subject to the same criminal charges and penalties as compound drug manufacturers – the types associated with dangerous, highly organized, and violent criminal syndicates.

In this article, we will look at the arrest and incarceration data available for marijuana-related arrests, average sentencing, and disparities between cannabis charges and consequences, versus other Schedule 1 drug violations. Is there unequal emphasis on marijuana crime than prescription drug distribution – the current leading cause of addiction (in adults and teens) and highest street-value Schedule I substances?


The Social and Economic Implications of Arrests for Marijuana Use

When reading decades of medical research, there is conclusive evidence that marijuana use is substantially less harmful for physical use than alcohol or tobacco, two legalized and taxed recreational drugs that have the social and legal "thumbs up" for use in America. It is this same research that has supported the pivot in the fight to legalize cannabis at the state level, while sale, distribution, and use of cannabis remains a federal offense. For many Americans, the legal disparity between state-endorsed use of marijuana and federal prohibition of cannabis is very confusing; a conflict in legal administration that may be filling our prisons up with lengthy sentences that are disproportionate to other crimes.

The American Civil Liberties Union (ACLU) addresses the statistical arrest bias that appears in data collected from 2001 to 2010, before sweeping state legalization began to occur. The ACLU reports that between 2001-2010, there were 8.2 million cannabis-related charges and arrests for possession. However, among the arrests, black citizens were 3.73 times more likely than a white citizen to be arrested, rather than fined for a misdemeanor, even when nominal quantities were in personal possession.

Black Americans are not the only racial profile that appears to be targeted heavily by law enforcement for cannabis-related charges. A report from the Drug Policy Alliance demonstrates that Latinos were 26 percent more likely than Caucasian people to be arrested, at the felony level, for marijuana possession, use, or distribution. The 2015 report also reveals that this bias exists despite evidence that black, white, and Latino populations consume and sell pot at very similar rates of frequency per capita.  

One ounce of cannabis may carry a misdemeanor charge and a fine of $500 for a Caucasian, but for a black or Hispanic citizen, the infraction is more commonly referred as a felony offense, punishable by a prison sentence. A discriminatory fact that makes no sense, from a social justice or economic perspective, but the criminal sentence racial bias is rarely addressed politically.

A crime report published by the Federal Bureau of Investigation (FBI) in 2014 indicated that there were over 700,000 arrests due to cannabis-related charges, and 88.4 percent of the charges were laid for personal possession (not re-sale, production, or distribution). The data revealed a rate of one marijuana related arrest every 51 seconds in 2014. Possession arrests were in decline from 2007, per the data, but jumped in 2013 at the height of legalization in many states in America, with 775,137 arrests in 2013.


The Impact of State-Legalized Marijuana Use on Law Reform

In 2016, there were 26 states and the District of Columbia that have existing laws, or that have amended laws in other forms, regarding recreational and medicinal use of cannabis. The recent Proposition 64 measure in California is the newest on the roster of states, providing refined legal limitations and conviction requirements for adults, and legalizing recreational marijuana use.

In California, thanks to Proposition 64, any adult over the age of 21 years may possess on their person or property one ounce of marijuana, and grow up to six live plants in their homes, but the law will be in effect commencing in January of 2018. In Nevada, adults will now be able to legally possess up to one ounce of marijuana beginning January 1st, 2017.  

Despite the legalization of recreational and medicinal use and possession of cannabis in more than 50 percent of the United States, it remains a federal offense for any physician to officially prescribe cannabis to patients – another disparity in the state and federal legal process.   Personal physicians may only ‘recommend’ the use of it for therapeutic purposes while confirming a diagnosed condition, where research has shown cannabis to be a treatment benefit.  

However, opioids and other highly addictive prescription medications can be formally prescribed by a physician; drugs that have been proven to be habit-forming, and known (in some cases) to place patients at greater risk for drug interactions and other health concerns.   This, to the American public, makes little to no sense, and indicates an opportunity for laws to be amended to strengthen control over prescription medications to stem abuse.


Should Marijuana Possession or Distribution Require a Prison Sentence?

The average sentencing for marijuana possession in non-legalized states can vary, and are impacted by history or prior convictions. Mandatory minimum sentencing and federal penalties for possession and distribution or resale also vary. Penalties for possession of drug paraphernalia, including vaporizers and pipes, are charged as a felony offense, and carry a prison sentence of up to three years.

Possession

• First offense – misdemeanor charge and a maximum fine of $1,000 and up to one year of incarceration.

• Second offense – misdemeanor charge and a maximum fine of $2,500 and 15 days to two years of incarceration.

• Subsequent offenses (after second offense) – minimum fine of $5,000 and 90-days to three years of imprisonment.

Sale of Cannabis

• Less than 50 kg – felony charge and a fine of $250,000 and five-year imprisonment.

• 100-999 kg – felony charge and a fine of up to $1 million dollars, and twenty years in prison.

• 1000 kg or greater – felony charge and a $1 million dollar fine, with 10 years to life sentence.

• Sale to minors or within 1,000 feet of a school or businesses frequented by children (including registered day-cares) carry double the fine and incarceration penalties.

Cultivation of Cannabis

• Less than 50 plants – felony charge and a fine of $250,000 and five-year prison sentence.

• 50-99 plants – felony charge and a fine of up to $1 million dollars, and twenty-years of incarceration.

• 100-999 plants – felony charge, a fine of $500,000, and five to 40 years of incarceration.

• 1000 plants or greater – felony charge, and a fine of $1 million dollars and 10 years incarceration to life sentencing.

In the legal community, the dialogue has already been started regarding the classification of cannabis as a Schedule 1 drug and the disproportionate criminal penalties that exist for possession, sale, or cultivation. As more states move toward decriminalization of marijuana for recreational and medicinal use, legal reform is on the horizon that may amend the penalties to reduce the burden and cost on the American prison system. Federal lawmakers will need to address this imbalance in criminal intent for a drug that is being endorsed and validated for recreational use at the state level.



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