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The Department of Justice Changes its Tune

Under the helm of Jeff Sessions, the DOJ recently changed its position to now opposes a state’s right to decriminalize marijuana use. The change reflects a reaffirmation of the Federal government’s authority in labeling marijuana as a Schedule I narcotic. The reversal is sure to have a major impact on recent inroads in the cause for legalization. It comes in direct contradiction of promises made by then Senator Sessions to defer cannabis policies to the states and leave existing legal architecture unfettered by federal officials.

Only a few days since this announcement and the windfall has been swift, garnering criticism from both sides of the aisle, with Cody Gardner (R) of Colorado threatening to suspend all appointments to the DOJ until the policy reversal is recanted. Colorado, like 28 other states and the District of Columbia have some form of legalization - medicinal or recreational. The exponential growth in legalization reflects shifting social mores, where for the first time most people in both major ideological camps favor decriminalization and/or forms of legalization[1]. We break down the marijuana policy debate logic and discuss the effects of criminalizing personal drug use, its impacts on prison populations, and why this shift may perpetuate criminality.

A Rationale

Marijuana, unlike other drugs, has taken a foothold into the cultural landscape of this country – endemic to many aspects of life and reflected in movies, music, literature, and art. Since the 1960s, advocates have actively pushed towards normalization. However, the reaction from political parties and religious groups has meant few changes in policies in the last 4 decades. The arguments for either side can be exhausted ad nauseum. One side argues cannabis as a harmless vice - not unlike alcohol - with use widely distributed across both cities and the heartland and whose legalization is poised to generate billions of dollars in tax revenue. The other side counters this arguing that marijuana is just the beginning, a gateway to more serious drug use and a jump down the rabbit hole of criminal inclinations, mental and physical decline, and overall ruin. Ultimately however, it does everyone a disservice to push any policy forward without giving a full look at what we can glean from decades of peer-reviewed non-partisan research. Consider the following primary arguments in decriminalization policy-making:

  • Marijuana legalization will lead to greater use

A working paper from 2017 by researchers at Harvard College and Western Carolina University suggests that the legalization of marijuana in states like Colorado has had little impact on the volume of use. A repeated cross-sectional survey of adolescents between 1991 and 2014 also reveals that increased access through medicinal marijuana laws has not increased use[2]

  • Marijuana use leads to increases in crime and other forms of deviance

Reflections in states like Colorado and Washington, have experienced both increases and decreases in property and violent crimes in the aftermath of legalization. The changes suggest no demonstrable causal effect between use and criminal propensity. Similarly, the same research by Harvard and WCU scholars found little support for changes in crime or youth deviance following state-wide legalization.

  • Marijuana use is highly destructive to both body and mind.

Most health professionals agree that tobacco and repeated alcohol use have equally bad or worse health consequences as marijuana. As early as 1982, the National Academy of Sciences’ Institute of Medicine concluded that no scientific evidence existed to substantiate any of the persisting health myths regarding marijuana use. Why this is important is a matter of how reform might improve the lives of individuals and the health of our communities.

Making sense of it

After nearly a decade of successes for drug advocates in changing the narrative and driving an affirmative public forum, many must now be asking why the shift? What end does the federal government see in using tax dollars to pursue legal marijuana users and distributors? An over-use of law to address social problems has fostered an “overcriminalization” of acts, with an endless number of offenses resulting in punishment. This overcriminalization phenomenon, first identified by sociologist Sanford Kadish[4], foreshadows the build-up state and federal prison facilities, the introduction of mandatory minimums, increased prosecutorial power, and the result of efforts to control illegal narcotics. Namely, a reliance on what is legal and illegal to mold and contain social forces. The overcriminalization of marijuana has very much become the byproduct of such seemingly punitive trends. From the hysteria of 1936 propaganda film Reefer Madness to the aggressive War on Drugs piloted by every president since Richard Nixon, marijuana has become ensnared in a web of moral panic. As arrests for drug use have increased substantially since the 1980s, the penalties for drug possession have concurrently hardened. Today close to 700,000 people are arrested annually for possession of substances deemed for personal use, a number that is higher when accounting for all violent crimes including murder and rape[5]. Of those arrested, less than 13% are done so with the intent to sell or manufacture suggesting that most are for personal use. Given both widespread use and selective law enforcement practices, these numbers become even more extreme when you disaggregate people by racial, sex, and age groups.

What happens?

It is estimated that 50% of all federal prisoners are drug offenders (n=98,000+) and among that, 23% are incarcerated on marijuana-related crimes. An increasing number of arrests means an ever-growing need for prisons; prisons to house drug offenders. The outcome for the drug offender depends on many factors, but in most places severity is often determined by criminal history. For those with repeated “criminal” behavior - even when non-violent – sentencing can lead to mandated minimum prison sentences that go on for years. While base drug charges don’t typically carry overly harsh penalties, many who get arrested with possession get wrapped up in a record which multiplies the effect of their incident. Habitual offender laws are designed to target “career criminals” do so without deference to context, with the sentence for repeated drug possession being equal to someone convicted of homicide. These practices, as part of the Boggs Act, were initially designed to take discretion from the hands of judges to ensure impartiality. However, minimum mandatory sentences have meant judges may exercise little power in adjusting outcomes for context. When someone offends, habitual offender laws can put even a routine shoplifter behind bars for more than a decade. For some non-violent offenders these laws can result in life-long sentences without the chance for patrol. The ACLU reports that more than 3,300 non-violent offenders, many of whom are drug offenders, have received life terms[6]. Fate Vincent Winslow, a homeless man from Shreveport, Louisiana, is among those now serving a life term without the chance for parole, probation, or sentence suspension. Why? Because a distribution drug charge where he acted as the middle man for a marijuana sale totaling less than $20 was combined with past minor offenses. It was his record that allowed prosecutors under Louisiana’s four-strikes law to secure a mandatory life sentence[7]. From now until his death, Mr. Winslow will sit at the Louisiana State Penitentiary in Angola, depriving him of potential productivity and social happiness while costing the state close to $20,000[8]. This is what happens when we overcriminalize behavior without a proven connection to public safety.

The deterrent perspective of sanctioning posits that any punishment should both reflect the nature of the crime and be designed to “deter” or mitigate future risk. With that, we must wonder whether sentencing involving jail time for marijuana use does in fact deter future behavior. Recidivism statistics produced by a Federal report for all crimes indicates that within 3 years 68% of those formerly incarcerated will be rearrested. That figure increases to 77% after 5 years post-release[9]. To the inquired mind this is confounding given the argument that advocates for punitive sanctioning make. Superficially these numbers show that prison fails to adequately reduce criminality in many situations. With the nature of the post-release environment, it is not entirely surprising that many people find themselves ostracized from conventional society and unable to reintegrate properly. Whether a drug offender or not, the formerly incarcerated find access to resources severely restricted after serving time. Finding a job, getting safe housing, and gaining access to social and government services can all become increasingly difficult. Surveys from the Urban Institute suggest that employers are often hesitant in hiring those with criminal convictions and are discriminated against more than any other disadvantaged group. They cite reluctance with the duties and expectations of the job (e.g. interacting with customers)[10]. Many of these individuals also struggle to secure housing, lacking both equity and job stability while carrying the stigmatizing label of “criminal.” Unable to find rewarding conventional work, it is not unreasonable to dream of scenarios where the disaffected gravitate into criminal syndicates where an underground economy flourishes and the barrier to entry is low. This self-perpetuating cycle – especially among non-violent first-time offenders – can create a criminogenic atmosphere where lifetime criminal offenders are bred[11]. It is both the formal sanction and society’s informal punishments that compound into a devastating effect that breaks communities apart and destroys social progress. Including personal marijuana use into the litany of criminal offenses deemed corruptible to society damages the justice system’s ability to deliver true justice and ensures the continuation of future criminality.

Within this discussion, JAC sees itself as an advocate for more sensible, cost-effective approaches where the state reallocates personal choice to the individual and focuses drug control efforts on the treatment and medicalization of drug use. The future of criminal justice should reorient its resources to target more serious sources of violent crime. Moreover, policies should be developed to keep people out of the system entirely. This is the surest way to avoid the stigma that accompanies a criminal record. We look forward to any progress made on the front for the equitable distribution of justice in the drug war, as well as an opportunity to offer people a pathway back into conventional society upon release.


[2] Hasin, D. S., Wall, M., Keyes, K. M., Cerdá, M., Schulenberg, J., O'Malley, P. M., Galea, S., Pacula, R., & Feng, T. (2015). Medical marijuana laws and adolescent marijuana use in the USA from 1991 to 2014: Results from annual, repeated cross-sectional surveys. Lancet Psychiatry, 2, 601–608

[3] Quinnipiac (Quinnipiac University Poll). Allow marijuana for vets with PTSD, U.S. voters say 10-1, Quinnipiac University national poll finds; slim majority says legalize marijuana in general. 2016. [December 16, 2016]. https://poll​​/release-detail?ReleaseID=2354.

[4] H. Kadish, Sanford. (1967). The Crisis of Overcriminalization. Annals of The American Academy of Political and Social Science. 374. 157-170. 10.1177/000271626737400115.





[9] Durose, Matthew R., Alexia D. Cooper, and Howard N. Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (pdf, 31 pages), Bureau of Justice Statistics Special Report, April 2014, NCJ 244205.


[11] Bennett, K. and Brickley, T. 2014. Labeling and Symbolic Interaction Theories of Crime. The Encyclopedia of Criminology and Criminal Justice. 1–6.

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