According to the U.S. Sentencing Commission, the number of federal marijuana sentences handed down has fallen for the 5th straight year.
In 2016, 3,534 people were sentenced for marijuana-related crimes at the federal level. The lion’s share of these convictions, 3,398 to be exact, were tied to trafficking cases; many of the remaining sentences involved simple possession. It is important to note that some of the cases with lesser charges may be the result of plea bargains.
These federal convictions have been steadily decreasing since 2012 when Colorado and Washington became the first states in the country to legalize marijuana for adult use. The first year after legalization saw federal marijuana convictions fall by 29% from 6,992 to 4,942.
Though marijuana remains highly illegal at the federal level due to its Schedule I listing in the Controlled Substances Act, there have been protections in place since 2013 that allow federal prosecutors to turn a blind eye to various marijuana-related activities, provided the subject is complying with their local state cannabis laws.
These statistics reveal a troubling trend, however, when you look at the proportion of cases that get pleaded out versus the ones that go to trial. In each of the last five years, roughly 97% of people charged with a federal drug-related crime plead guilty rather than let the case reach trial.
According to Human Rights Watch, “Only three percent of federal drug defendants go to trial. Plea agreements, once a choice to consider, have for all intents and purposes become an offer drug defendants cannot afford to refuse.”
The United States justice system has long been hailed as fair and just because of the availability of an impartial trial to anyone accused of a crime, but that option has become less appealing than ever. According to Human Rights Watch, the reason 97% of these federal drug cases get pleaded out is because, regardless of guilt, the accused cannot afford to risk going away for a much longer sentence, a very real possibility if their case reaches trial.
But prosecutors also threaten to increase defendants’ sentences if they refuse to plead. Perhaps their most powerful threats are based on two statutory sentencing provisions that can dramatically increase a drug defendant’s sentence. Under 21 U.S.C. §841(b)(1) prior felony drug convictions can dramatically increase a mandatory minimum drug sentence. Under 18 U.S.C. §924(c) prosecutors can file charges that dramatically increase a defendant’s sentence if a gun was involved in the drug offense. Prosecutors will threaten to pursue these additional penalties unless the defendant pleads guilty – and they make good on those threats.
Of the cases that do not get plea bargained down and actually reach trial, about 90% of the accused are convicted as guilty.
Because federal prosecutors have nearly unbridled power to choose the specific charges they wish to place on a defendant without input from the judge, they tend to select charges with mandatory minimum sentencing requirements to place extra pressure on the accused to plead guilty ahead of trial. If the defendant declines to accept a plea bargain, the choice can almost be used against them, as they are punished for utilizing their Constitutional right to a fair trial.
“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former Assistant United States Attorney and current Associate Professor of Law at the University of North Carolina, to the New York Times. Myers said prosecutors have so much power now that “in the wrong hands, the criminal justice system can be held hostage.”
Even though it is a welcome sight to see falling marijuana sentencing statistics, it is important to make sure federal prosecutors aren’t gaming the system to avoid reaching a jury of the defendant’s peers.
These federal sentencing statistics do not include local and state cases, where the vast majority of drug policing occurs. According to the FBI, more than 500,000 people were arrested by their local or state law enforcement for marijuana possession alone in 2015, whereas only 3,500 individuals were convicted at the federal level for similar crimes the same year.
Last week, President Trump requested that all of the remaining 46 Obama-appointed federal prosecutors submit their resignations, a move that surprised many but does actually have some precedence, especially in a transition of partisan control. Over the next 4 years, it will be interesting to watch how a new class of federal prosecutors with a new set of ideals will affect these sentencing statistics.
Cover Image Courtesy of Allie Beckett