Now that a majority of states have legalized medical marijuana, and several have legalized recreational marijuana, what effect have those changes had on the rate of individuals jailed for marijuana possession?
We take a look at the most recent statistics available in this article.
Before we jump into incarceration rates, we need to look at the legalization landscape in the United States, and a brief history of marijuana usage in the United States from early days to now.
The Legalization Landscape in the U.S.
As of August 2019, 33 states had legalized the use of medical marijuana. We highlight those states in the infographic below.
In addition, 11 states have legalized recreational medical marijuana usage, as shown in the infographic below.
Note that some of the states in the graphs above have already passed laws legalizing recreational or medical marijuana that won’t be enacted until 2020 or later.
We should probably clarify that the sMatates in the above graphics have legalized marijuana again. Did you know that marijuana usage in the United States wasn’t always illegal? We take a look at when things changed and how we got to where we are today. California, Colorado, and Oregon are usually the states you think of when it comes to marijuana legalization, but how does drug law play a part?
Here are the states that have legalized recreational marijuana:
And here are the states that have legalized medical marijuana:
Marijuana Use in the United States
In the 1850s, marijuana began being prescribed in the United States by some doctors and pharmacies for a few select ailments. At the time, cannabis and its various forms were considered to be pharmaceuticals.
Around the same time, there was a movement to properly label pharmaceuticals, including marijuana. This meant clarifying dosage, proper usage, and calling anything that could be harmful if not used properly as a “poison.”
By 1916, several states had rules that regulated these “poisons,” which included marijuana, stating that they couldn’t be consumed unless prescribed by a doctor and prepared by a pharmacy, and only at the dosages prescribed.
As opium gained popularity in the West and opium addiction swept through Europe, many countries, including the United States, created tighter regulations around narcotics, and included marijuana in the list of drugs under the narcotic class.
By the late 1920s, many states had already banned the sale and use of marijuana unless prescribed by a doctor, and some had banned its use altogether.
These changing views of narcotics and other drugs led to national bans on many drugs that had been prescribed by doctors or used recreationally as late as the early 1900s—including heroin, cocaine, and marijuana.
In 1937, the Marihuana Tax Act was passed, which essentially banned the sale and use of marijuana nationwide.
This act was a response, in part, to several public awareness campaigns that linked marijuana use to violent crime in general, and specifically scared Americans into believing that unsuspecting young women were being given marijuana at parties and taken advantage of.
The Controlled Substances Act, passed in 1970, replaced the earlier Marihuana Tax Act, but kept marijuana on the list of dangerous controlled substances.
We look at when marijuana was initially banned in several countries in the timeline below.
In the late 1970s and early 1980s, around 30 states had passed laws that allowed for some form of marijuana use—usually requiring a doctor’s prescription.
However, because of the ban on marijuana at the federal level, and the states’ perceived inability to enforce these laws without the backing of the federal government, very few of the new laws ended up actually being enacted.
As public perception of marijuana changed in the 1970s and began to reflect the pre-ban views of the American public from the late 19th century, lawmakers started receiving public pressure to relax or remove the laws banning marijuana, and many state leaders took note of the changing tides.
Which leads us to the present day, where the majority of states have enacted laws re-legalizing marijuana and have taken the necessary steps to practically carry out the provisions of those laws.
So, does that mean no one’s getting arrested for marijuana use/possession anymore? We take a look at the marijuana-related arrest and incarceration rates (which are two very different things) below.
Marijuana Arrest Rates
The number of individuals arrested for marijuana possession/distribution is not the same thing as the number of people incarcerated for marijuana possession/distribution.
Many people get arrested for something without ever being formally charged in court, and while they still have an arrest record, they never have a conviction or serve any kind of sentence related to it.
This happens when a prosecutor decides there’s not enough evidence to proceed to a hearing, or if what the person was arrested for doesn’t actually violate any laws that the person can be prosecuted for in court.
In fact, many people held in local or county jails are there because they can’t afford to pay the bond/bail required for the trial appearance, so they remain in jail until their first hearing.
This means that the vast majority of those arrested for marijuana possession aren’t being sentenced for it.
The infographic below shows the most current data available.
As you can see from the graphic above, while hundreds of thousands of individuals are arrested for marijuana possession, only a handful are sentenced at the federal level, and only a small percentage of those held in state prisons are there for any type of drug possession (including marijuana).
We next wanted to look at marijuana possession arrests over time, compared with other types of possession arrests. The chart below takes a look at how many individuals were arrested for possession of various drugs between 2000 and 2016.
As you can see, while marijuana possession arrests still outpace all other drug possession arrests over a 16-year time span, the number of people arrested in 2016 was lower than every other year except 2015 and 2002.
We next look at marijuana possession arrests over that same period compared to all drug possession arrests.
As you can see in the chart above, the highest number of arrests for marijuana possession occurred between 2007 and 2010, with more than 570,000 people arrested for marijuana possession each year. There was a small spike in 2013, with 532,256 people being arrested for marijuana possession.
Does that also mean those years had the highest percentage of marijuana possession arrests? Not necessarily! We take a look at the percentages in the chart below.
As shown in the chart above, the largest percentage of marijuana possession arrests occurred in 2008 and 2009 (56 percent of all drug possession arrests) while the lowest percentage occurred in 2016, when 43 percent of all drug possession arrests were due to marijuana.
2016 is actually the lowest year, percentage-wise, for marijuana possession arrests during the 16-year period covered in the chart above.
But those are just the numbers for the possession arrests—what about manufacturing/growing arrests? Is it true that people are being arrested for growing a few marijuana plants in their homes? We’ll let you be the judge after looking at the numbers in the graphs below.
The chart above shows that compared to all other drugs, marijuana arrests in this category make up between a low of 26 percent of all manufacturing arrests (63,077 in 2001) and a high of 35 percent of all drug manufacturing arrests (79,720 in 2010).
We explore the percentages in more detail below.
You can see how the percentage of arrests for marijuana manufacturing compares to the percentage of arrests for manufacturing other types of drugs in the graph above.
Now that we know how many individuals are arrested every year for marijuana possession and manufacturing, how many are actually being sentenced because of marijuana alone and serving jail time? We take a look below.
Marijuana Incarceration Rates
Remember that the number of people arrested doesn’t equal the number of people actually sentenced for marijuana possession/manufacturing or trafficking. So, how many people are being held in jails or prisons because of marijuana?
We take a deep dive into the numbers of those serving time in federal prisons as state and local jails don’t tend to reliably break out marijuana from other types of drug offenses for statistical purposes.
As you can see in the graph above, there were 94,421 federal inmates in prison on drug trafficking charges, 247 inmates in federal prison for drug possession, and ten inmates in federal prison for other drug charges.
This means that around one-tenth of 1 percent of all inmates in federal prison on drug offenses are there for possession. These numbers include all drug types, not just marijuana. We break out the numbers by drug type below.
As displayed in the chart above, 11,533 inmates, or about 12 percent of all federal inmates being held on drug-related offenses, are in prison for marijuana-related offenses.
This is less than the number of inmates being held for cocaine- and meth-related offenses. In fact, around 53 percent of all federal inmates being held on drug-related offenses are there for crack and powder cocaine, and about 24 percent are in a federal prison for meth-related offenses.
Lastly, heroin (with about 6 percent) and other drugs (about 3.5 percent) round out the chart above.
So, of all inmates serving time in federal prison on drug charges, 12 percent are in prison because of marijuana; and less than one tenth of one percent of all federal prisoners serving time for drug charges are there because of possession.
That means the percentage of inmates being held in federal prison because of marijuana possession alone is an incredibly tiny percentage (less than one tenth of 1 percent).
But who’s going to prison for marijuana-related offenses? We examine the data below.
Who’s Being Incarcerated for Marijuana?
Unfortunately, demographic data isn’t broken down at the state or local level. We do, however, have this data for the federal prison population that is serving time because of marijuana. The most current data available is from 2012.
It may or may not surprise you to know that the vast majority of federal prisoners serving time in 2012 because of marijuana (nearly 94 percent) were males. They also tended to be Hispanic, and were typically over the age of 30. We explore these numbers more in the graphs below.
Perhaps surprisingly, the majority of federal inmates held on any type of drug charge are 30 or older, and a full 72 percent of those held on marijuana charges are in the 30-plus age group.
As you can see from the chart above, 59 percent of inmates held on marijuana-related offenses at the federal level in 2012 were Hispanic/Latino, followed by white inmates at 24 percent, and African-American inmates at nearly 14 percent.
When we look at the largest percentage of inmates held for the other drug categories, we see that slightly more than 88 percent of federal inmates held on crack-related offenses were black, and 54 percent of federal inmates held on powder cocaine offenses were Hispanic. Racial disparities are very notable when it comes to law enforcement and drug arrests. Minorities are more likely to be charged with misdemeanors for possession of marijuana, even in places where it is decriminalized.
In the remaining categories, 48 percent of federal inmates serving time for heroin-related offenses were Hispanic, 48 percent of federal inmates held on methamphetamine offenses were white, and 50 percent of federal inmates held for other drug types (ecstasy, opioids, etc.) were also white.
Interestingly, we might know why the demographics are skewed toward a larger percentage of Hispanic individuals being sentenced for marijuana possession and trafficking. We take a look at the raw data in the charts below.
First, we look at the national federal sentencing trend for the five year period of 2008-2013.
The chart above shows a large spike in the number of marijuana possession and trafficking sentences at the federal level in 2012 and 2013. In fact, the number of individuals sentenced to a federal prison because of marijuana nearly doubled between 2012 and 2013. Why did that happen?
The chart below may just give us the answers.
As you can see above, Arizona outstripped every other state combined when it came to issuing federal convictions for marijuana possession and trafficking. In fact, in 2013, more than 86 percent of all federal convictions came from Arizona.
This means that of the 2,169 federal sentences for marijuana possession or trafficking handed down nationwide in 2013, 1,880 of them came from Arizona. And, studies have shown that the majority of Arizona’s marijuana-related arrests occur along the Mexican border.
This might be one reason there’s a larger Hispanic population serving time in federal prison on marijuana-related charges, if the state handing down the largest number of federal sentences is focused on enforcement along the border with Mexico.
And, since this state drives the national numbers, if Arizona’s upward trend in federal sentences for marijuana continues, then the national numbers will continue to be skewed, and it will appear as if sentencing is up for the entire country, when it may really only be up for one state.
While more and more states are legalizing marijuana for medical use, and some have even legalized it for recreational use, arrests for marijuana possession continue to outpace arrests for possession of other drugs.
Although the arrest numbers are high, the actual number of people sentenced for marijuana possession is fairly low, with only one-tenth of 1 percent of all federal prison inmates held on drug offenses being there for simple drug possession.
It’s also a fairly small number at the state prison level, with only about 3 percent of all state inmates incarcerated due to any type of simple drug possession, which includes marijuana.
Finally, even though it appears that federal sentencing for marijuana is up nationwide, it may be due to Arizona’s higher-than-average number of federal convictions when compared to all other states.
- The Washington Post, “How Many People Are in Prison on Marijuana Charges?”
- FBI, “2017 Crime in the United States, Table 29.”
- Prison Policy Initiative, “Mass Incarceration: The Whole Pie 2019.”
- FBI, “2017 Crime in the United States, Arrest Table.”
- Business Insider, “Illinois Just Became the First State to Legalize Marijuana Sales Through the Legislature–Here Are All the States Where Marijuana is Legal.”
- Governing, “State Marijuana Laws in 2019 Map.”
- Wikipedia, “Legal History of Cannabis in the United States.”
- Wikipedia, “Timeline of Cannabis Law.”
- U.S. Department of Justice, Bureau of Justice Statistics, “Drug Offenders in Federal Prison: Estimates of Characteristics Based on Linked Data.”
- Vox, “Marijuana Legalization Can’t Fix Mass Incarceration.”
- United States Sentencing Commission, “2017 Sourcebook of Federal Sentencing Statistics, Table 33.”
- United States Sentencing Commission, “Quick Facts–Marijuana Trafficking Offenses.”
- United States Sentencing Commission, “Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System.”
- FBI Crime Data Explorer, “Reported Number of Drug Arrests.”