Trump has let up on it, promising to take away Jeff Session’s video of Reefer Madness. Former Speaker of the House John Boehner, has “pivoted,” now that he’s out of office and powerless to do anything other than profit from it, calling for its “de-scheduling.” And upstate amateur lesbian gubernatorial candidate and former Sex in the City lawyer Cynthia Nixon is running on a platform of legalizing it.
Marijuana. So what if Nixon doesn’t grasp the difference between jail and prison, or that among the many sound reasons to legalize weed, racial disparities in arrests isn’t one of them.*
But while there are many problems with the war on drugs in general, and the criminalization of weed in particular, legalizing marijuana will not “fix” one huge problem no matter how often the myth is repeated.
It is true that a lot of people are arrested each year for marijuana. In 2016, nearly 600,000 people were arrested for simple marijuana possession. These arrests on their own can create huge problems — leading to criminal records that can make it harder to get a job, housing, or financial aid for college.
But these arrests are only a small part of America’s mass incarceration problem.
For most people arrested for marijuana, the only time spent in custody is between arrest and arraignment. Simple possession is a big deal due to the collateral consequences of any arrest and conviction, but not because of imprisonment. Selling weed is somewhat different, though you still have to get busted with either a significant amount or enough times for any judge to give you serious time.
First, most people in jail or prison are not in for drug charges at all. According to the Prison Policy Initiative, around 21 percent of people in jail or prison are in there for a drug crime, including marijuana possession. So the great majority of people are not incarcerated due to drugs.
While it may be fair to assume, as German Lopez does, that within the “drug crime” numbers there are people in prison for marijuana possession, there is nothing to support this, nor to establish the numbers or actual reasons why.**
How many of the 21 percent of drug offenders are in for marijuana possession?
Unfortunately, we don’t have good data for jails, where people are held before they’re convicted of a crime and for shorter sentences.
We also don’t have good data for state prisons, where more than 87 percent of US prison inmates are held, based on federal data. But we do know that a minority of state prisoners are in for drugs: In 2015, 3.4 percent of all state prisoners were in for drug possession and 11.7 percent were in for other drug-related crimes. So only a fraction of prisoners are locked up due to drug prohibition in general, much less marijuana prohibition in particular.
As we chip away at the numbers, to the extent any actual numbers exist, the reality sinks in. This isn’t the cause of our mass incarceration problem. Fordham lawprof John Pfaff has been screaming this for years.
We do have some good data for the federal system. According to the US Sentencing Commission, 92 of nearly 20,000 people — fewer than half a percent — sentenced for drug offenses during fiscal year 2017 were locked up due to simple possession of marijuana.
Even this strikes me as a bogus description. Of the 92 people, was it really just simple marijuana possession? Of 32 kilos, maybe? I don’t buy it and, without knowing the backstory of the 92, it’s data without context.
The impact of a criminal conviction*** for weed is nothing to sneeze at. As with any conviction, it taints you, limits your options and follows you in perpetuity in New York, where there is no such thing as expungement. But what it is not is the cause of mass incarceration. Our prisons are not full of non-violent pot possessors. Legalizing marijuana use and possession will have almost no impact on Prison Nation. It’s a problem, but not that problem.
There are excellent reasons to de-criminalize weed. It has significant medical uses. It’s as, if not more, benign than alcohol. That doesn’t make smoking pot any more of a virtue than drinking alcohol, but it doesn’t make it more of a vice either.
And to Cynthia Nixon’s point, that the consequences of the selective enforcement in minority communities are that it impairs the ability to go to college, to get an occupational license, to gain employment, for those targeted by police. Taking away law-abiding options for a successful future means people turn to less-law-abiding options to survive. That serves no one’s interests. It may not be a reason to legalize weed, but it would prove a significant societal benefit if we did.
*It may be an excellent reason to address racial disparities in policing and prosecution, but bears no connection to the underlying offense, which should be, or not be, an offense because of the nature of the conduct, not who gets busted for it.
**A prisoner released after a meth selling conspiracy sentence, who violates parole/supervised release by testing positive for weed, may be returned to prison and categorized as being there for marijuana possession. That may be, but ignores the totality of the factors that put him in the can.
***The lowest level offence for simple possession of marihuana (yes, New York spells it wrong in its statute) is unlawful possession of marihuana in the seventh degree, Penal Law 221.05, punishable by a fine of no more than $100 for a first offense. It’s a violation, the equivalent of a traffic ticket, not a crime.