How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition

25 Pages Posted: 18 Nov 2021

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law

Alex Fraga

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: November 17, 2021

Abstract

Modern state medical marijuana laws date back to 1996, when Californians approved the first statewide medical marijuana legalization law via ballot measure; Colorado and Washington voters passed the first ballot initiatives legalizing marijuana for adult use in 2012. By summer 2021, a total of 36 states and 4 U.S. territories had legalized the medical use of marijuana and 18 states, two territories and the District of Columbia had legalized adult use of marijuana.

Over this quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century. But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically. In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade. While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court and has evolved as the caseload has declined. Notably, in 2012, the majority of persons sentenced for marijuana offenses in federal court were Hispanic (66%) followed by white (22%), Black (8%), and other races (3%). But by 2020, though the majority were still Hispanic (62%), the number of persons sentenced for marijuana who were Black had doubled to 18% and white offenders were down to 15% with other races at 5%. These data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. This essay will reflect upon how state legal reforms have mellowed (but certainly not ended) federal enforcement.

Keywords: Marijuana prohibition, marijuana reform, marijuana enforcement, racial demographics of federal marijuana defendants, federal sentencing, federal marijuana sentencing trends

Suggested Citation

Berman, Douglas A. and Fraga, Alex, How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition (November 17, 2021). Ohio State Legal Studies Research Paper No. 670, Fordham Urban Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3965571 or http://dx.doi.org/10.2139/ssrn.3965571

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

Alex Fraga

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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