Colorado Territorial Correctional Facility Medium Security Prison in Canon City, Thursday, June 24, 2004.

Of all the misunderstandings about marijuana’s impact on the country, perhaps none is greater than the belief that America’s courts, prisons and jails are clogged with people whose only offense was marijuana use. This is the perception, but statistics show few inmates are behind bars strictly for marijuana-related offenses, and legalization of the drug will do little to affect America’s growing incarceration numbers.

“It’s this myth that won’t go away and gets repeated by people who should know better. Unfortunately, no one reads public records,” said Ernie Martinez, Denver-based at-large director for the National Narcotics Officers Association Coalition. “But the truth is there — and it looks a lot different than the story pushed by marijuana-legalization advocates and amplified in news media.”

Leaders of the country’s biggest groups pushing for and against marijuana legalization surprisingly stand on a lot of common ground.

Both camps say they do not want people jailed only for drug use and/or possession of small amounts consistent with personal use. They also agree with what public records show: Nationwide, racial and ethnic minorities are arrested and convicted at higher rates than whites across many criminal categories, including drug possession and use.

Both camps also favor law enforcement strategies that streamline low-level drug offenders into drug courts and treatment programs. They push for reforms of the criminal justice system that would give judges more flexibility in sentencing in specific, lower-level, nonviolent cases.

Similarly, advocates on both sides of the legalization debate say they want to see legal reforms that could help remove the stigmas that may prevent low-level drug offenders with personal-use convictions from having housing, jobs and scholarships that help them lead productive and healthy lives.

Where the factions sharply disagree is on the question of whether marijuana legalization is needed to accomplish any of those goals.

“Marijuana legalization isn’t required to reform problematic laws, and it’s not the answer to our prison problems, and it certainly won’t end racism where it exists in the legal system,” said Kevin Sabet, a former senior White House drug policy adviser who co-founded Smart Approaches to Marijuana, a nonprofit organization advocating for reform of marijuana laws without legalizing the addictive drug.

“Legalization is really about creating a heavily commercialized Big Tobacco 2.0 that lets people make a lot of money from the sale of another addictive drug that we have every reason to believe will disproportionately harm poor people who don’t have the resources to overcome the problems of substance abuse and addiction,” Sabet said. “We’ve already seen this with alcohol and tobacco.”

Data needed to track impact

Martinez, the law enforcement officer who has been appointed to serve on local and state committees tasked with examining and implementing marijuana laws, said law enforcement agencies throughout the state are only now beginning to gather the marijuana-centric data they need to track the drug’s impact on their resources.

In the meantime, his more than three decades of professional experience — and those public records he would like more people to review — tell him very few people are arrested and/or imprisoned only for marijuana possession and/or use.

“Our courts and prisons are actually filled with people who committed serious crimes while under a drug’s influence or while they were in possession of very large amounts of a drug with the intent to sell it in circumstances associated with violence and/or firearms,” he said. “If anything, we need to conduct more research on how marijuana use contributes to criminal behavior.”

According to the Bureau of Justice Statistics in 2004 — eight years before Colorado voters cited the reduction of prison populations as a chief reason for their 2012 vote to legalize recreational marijuana:

• One-tenth of 1 percent of people in state prisons were serving sentences for first-time marijuana possession. Those people also may have concurrent sentencing for other offenses.

• Three-tenths of 1 percent of people in state prisons were serving time for marijuana possession with prior criminal offenses. They, too, may have concurrent sentencing for other offenses.

• 1.4 percent of people in state corrections were imprisoned for offenses involving only marijuana-related crimes. 

Those national numbers are consistent with a report released by the Colorado Drug Investigators Association. In 2010, only1 percent of court commitments to prison in Colorado involved marijuana charges. There were more court commitments to prison for traffic-related offenses (185) than for all marijuana offenses (91) that year, the association reported, citing a review of Colorado Department of Corrections records.

Casual users not targeted

In 2011, the U.S. Sentencing Commission issued reports also suggesting that low-level drug users are not the targets of law enforcement nationwide: 

• That year, there were 216,362 inmates in the federal system. Among them were 6,961 marijuana offenders, only 103 of whom were imprisoned for simple possession — the result of plea bargains in which prisoners pleaded down to possession in exchange for lesser sentences.

• The federal government convicted only 48 marijuana offenders who possessed less than 5,000 grams of marijuana. The average amount possessed was 3,800 grams — the equivalent of about 9,000 joints, or marijuana cigarettes.

Though people generally are not jailed for marijuana use, the nation’s criminal justice system is flooded with possession charges. In 2011, the FBI reported that law enforcement agencies across the country made about 800,000 “arrests” for marijuana possession — but there are two major caveats Martinez and Sabet say often are not reported:

• Though a charge might be recorded as an “arrest,” most localities across the U.S. treat marijuana possession much like a parking or speeding ticket. Many users are not actually arrested or taken to jail. But a possession conviction can harm someone unnecessarily for years, Sabet said.

“That is why we should advocate for laws that do not discriminate against those with records for small-time marijuana possession only — for instance, for getting college loans, public housing or other benefits,” he said. “We don’t have good data on the number of people affected by a criminal record tarnished only with marijuana possession arrests, but the number is not trivial.”

• Possession charges are typically levied in conjunction with charges for more serious crimes, usually trafficking, and often the result of plea bargaining down from more serious charges.

“In other words, many times, the system has done a lot of these people a favor by letting them plea only to possession,” Martinez said.

In 2008, Martinez coordinated a committee appointed by then-Denver Mayor John Hickenlooper to examine all marijuana-possession summonses the Denver Police Department issued that year. The review of 1,368 summonses, conducted by researchers at the University of Colorado Denver’s School of Public Affairs, found: 

• The typical offender was a white male, representing 46.3 percent of the total sample. African American males followed at33.9 percent, Hispanic males at 18.3 percent and Asian males at 1.5 percent.

• The most common reason for contact between an alleged offender and a police officer was a traffic stop, cited in 32 percent of cases. Suspicion of other criminal activity was the second most common reason police cited for stopping someone, recorded in 22 percent of cases.

• In cases where locations were noted on a summons, marijuana possession citations were issued in a public setting 83.6 percent of the time, compared with 14 percent issued at a private home — typically residences where officers had been summoned for help.

Use high among offenders

Sabet and Martinez say they also stand against legalization because it would increase use of an addictive drug prevalent among people caught up in the criminal justice system.

“Correlation is not causation, but I do not think we’ve looked thoroughly enough at this association between criminal behavior and marijuana use — which has increased since marijuana legalization in Colorado,” Martinez said.

Indeed, marijuana is the “drug most commonly admitted when … arrestees were asked about use in the prior 30 days,” according to the federal Arrestee Drug Abuse Monitoring Program’s 2013 annual report, the most recent data available. Consider: 

• In Denver, 53 percent of adult, male arrestees admitted marijuana use in the 30 days before their arrest.

• Of male arrestees tracked by the program, those in Denver reported the least difficulty buying marijuana, with 17 percent reporting a “failed buy” in the previous30 days.

Arrestees tracked in Atlanta and Chicago, where recreational marijuana use is illegal, reported more difficulty obtaining the drug, with 24 percent and 40 percent “failed buys,” respectively.

The findings are consistent with a Colorado Department of Corrections report released in 2011 — before the legalization of recreational marijuana — that found 80 percent of court commitments to Colorado prisons had a moderate to severe substance abuse problem.

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