AuthorBerman, Douglas A.

Introduction 675 I. A Short History of Intersecting Federal and State Marijuana Prohibitions and Reforms 677 II. Modern Federal Marijuana Enforcement and Sentencing 683 A. The Decline in Federal Marijuana Sentences 685 B. The Impact and Import of Many Fewer Federal Marijuana 686 Sentences C. Changes in Rates of Convictions 687 D. Changes in Law Enforcement Seizures 687 E. Demographics of a Changing Enforcement Landscape 688 Conclusion 690 Appendix A 692 Appendix B 693 Appendix C 693 Appendix D 694 Appendix E 694 Appendix F 695 Appendix G 695 Appendix H 696 Introduction

The history of drug prohibitions and enforcement efforts in the United States always reflects a kind of federalism in action. Because the federal government always lacks the resources and often lacks the political will to fully enforce drug prohibitions nationwide, state laws and local practices will inevitably shape and color the full picture of U.S. drug policy and enforcement. When alcohol Prohibition was written into our nation's Constitution, for example, state and local officials embraced an array of different approaches to enforcing temperance, which produced a patchwork of on-the-ground practices across the nation. (1)

In modem times, marijuana prohibitions and reforms present the most salient and dynamic examples of national drug policies reflecting diverse and sometimes clashing federal and state laws and local practices. Though some commentators have explored how federal marijuana prohibition has shaped state reform efforts and local enforcement realities, (2) few have focused attention on the most tangible and arguably most consequential aspect of federal enforcement, namely federal sentences imposed for marijuana activity. This Essay seeks to document and examine critically the remarkable recent decline in the number of federal marijuana sentences imposed as states have begun fully legalizing marijuana for all uses by adults.

This Essay begins with a brief overview of marijuana reform history to set the context for examining modem federal marijuana prohibition enforcement patterns. Even while formal federal marijuana law has persisted unchanged amid state-level reforms, federal marijuana enforcement on the ground has changed dramatically. Drawing on data from the U.S. Sentencing Commission (USSC), this Essay details the new federal enforcement patterns that emerged when states started fully legalizing marijuana. The data reveal some trends that reform advocates would likely consider encouraging (e.g., a sharp reduction in federal marijuana sentences) (3) as well as some likely to be viewed as discouraging (e.g., the evolving demographics of those federally sentenced). (4) This Essay concludes with questions about the future of federal marijuana policies and practices and their impact on the populations historically subject to disproportionate punitive marijuana enforcement.


    Marijuana was not subject to criminal law for most of U.S. history as farmers grew industrial cannabis known as hemp, and doctors used marijuana as an ingredient in patent medicines and home remedies. (5) But when white citizens came to associate marijuana use with Mexicans in the early 1900s, numerous state legislatures started to criminalize the drug. (6) The federal government, though mostly focused on alcohol Prohibition, began regulating drugs in this era. Congress created the Federal Bureau of Narcotics in 1930, and its leader, Harry Anslinger, used racialized advocacy to cast marijuana as a menace. (7) Seemingly because he feared his position and the Federal Bureau of Narcotics were in political jeopardy after the end of alcohol Prohibition, Anslinger in the mid-1930s "declared [a] war on marijuana" and for decades advocated for punitive criminal justice responses to drug policy issues. (8) In particular, Anslinger first pushed Congress to pass the 1937 Marihuana Tax Act, (9) after which he urged states to criminalize and enhance punishments for marijuana; Anslinger's advocacy ultimately advanced the 1951 Boggs Act, which created federal mandatory minimum prison sentences for possession of marijuana and other drugs. (10)

    Despite the enactment of new criminal statutes and punishments at the federal and state level, enforcement of marijuana prohibition was still limited into the 1960s. (11) However, then-President Richard Nixon entered the Oval Office on a law-and-order platform with a focus on drug enforcement: in 1969, he told Congress that drug abuse was "a serious national threat to the personal health and safety of millions of Americans," (12) and in 1971, he pronounced drugs "public enemy number one." (13) Notably, Nixon Administration officials have suggested his decision to wage a "war on drugs" was driven by a desire to target political enemies and racial minorities. (14)

    Prodded by President Nixon, Congress passed the Controlled Substances Act (CSA) in 1970, which regulated the use, production, distribution, and sale of certain drugs. (15) In some respects, the CSA marked an improvement in federal drug laws; the Act replaced or amended patchwork federal drug control statutes (some of which carried severe punishments) (16) and prioritized scientific and medical determinations for creating distinct drug classes. (17) However, Congress opted to classify marijuana as a Schedule I drug presenting "a high potential for abuse" and "no currently accepted medical use" in the CSA; scheduled with drugs like LSD and heroin, this classification made any manufacture or distribution of marijuana a serious federal criminal offense. (18)

    The CSA's classification of marijuana contradicted the recommendation of the National Commission on Marihuana and Drug Abuse, known as "the Shafer Commission," which advocated in 1972 for decriminalizing personal use of marijuana. (19) The Shafer Commission called criminal law "too harsh a tool to apply" to personal marijuana use because it leads to users being "stigmatized as criminals, incurring the economic and social consequences of involvement with the criminal law." (20) A dozen states responded to the Shafer Commission's recommendation; throughout the 1970s, legislatures in states ranging from Maine to Mississippi, Ohio to Oregon, and California to New York, enacted various forms of marijuana decriminalization. (21) However, at the federal level, the Nixon Administration rejected the Shafer Commission's decriminalization recommendation, (22) and blanket federal prohibition of marijuana in any and all forms has remained the law of the land for the ensuing half century.

    The modem state marijuana reform movement started in 1996, when the citizens of Arizona and California voted to legalize marijuana for medical use. (23) Within the next decade, nearly a dozen additional states approved ballot initiatives or enacted traditional legislation to create various means to permit certain persons to access marijuana for medical purposes. (24) However, the federal government during this period still sought to block the implementation of state medical marijuana laws in ways that included raids and prosecutions of medical marijuana dispensaries, (25) as well as successful defenses of blanket federal prohibition in two distinct challenges before the U.S. Supreme Court. (26)

    In 2009, the trajectory of federal enforcement and state reforms was significantly altered when the Obama Administration issued its first memorandum signaling it would not prioritize federal prosecution of citizens "in clear and unambiguous compliance" with state laws unless conduct conflicted with "core federal enforcement priorities." (27) This policy, which followed up on President Barack Obama's campaign promise to end federal raids on medical marijuana facilities, had a profound impact on the development of state medical marijuana programs. Many public and private actors viewed this 2009 memo as a green light to develop medical marijuana programs in the states without federal interference, and the modem marijuana industry began to flourish. (28)

    As medical marijuana reform picked up momentum, advocates and industry players began discussing state ballot measures to legalize the use of marijuana by all adults. A failed first proposition in California in 2010 provided key lessons for reform advocates who succeeded in securing voter approval of full legalization in Colorado and Washington in 2012. (29) While states geared up regulatory rules for state marijuana businesses, the Justice Department issued another memorandum in August 2013 indicating a disinclination to prosecute state-compliant marijuana actors whose activities did not threaten federal enforcement priorities. (30) In addition to prodding further regulatory development in Colorado and Washington, this memo emboldened advocates, industry players, and state officials around the country to move forward with various marijuana reform efforts. (31) Ballot initiatives authorizing recreational use of marijuana moved ahead and were approved in 2014 by voters in Alaska, Oregon, and Washington, D.C.; in the 2016 election cycle, similar ballot initiatives were also approved in California, Maine, Massachusetts, and Nevada; in 2018, Michigan voters added their state to the legalization list; and similar ballot initiatives were approved by voters in Arizona, Montana, New Jersey, and South Dakota in the November 2020 election. (32) In addition, since early 2018, Connecticut, Illinois, New Mexico, New York, Vermont, and Virginia have all enacted adult-use marijuana legalization regimes through the traditional legislative process. (33)

    The federal executive branch's non-enforcement policy for state-compliant marijuana activity was partially codified when Congress started enacting appropriations bills with a spending rider prohibiting the U.S. Department of Justice from interfering with state efforts to implement medical...

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