Federal criminal cases focused on marijuana have fallen sharply since states began legalizing cannabis, even though drug crimes continue to consume the bulk of the federal caseload, new data shows.
A report from the United States Sentencing Commission (USSC) released on Tuesday revealed that drug crimes remain the most common type of federal criminal cases, accounting for about 30 percent. The USSC reported that 92 percent of these drug cases involved trafficking.
Even so, 1,301 federal drug cases “involved a conviction for the simple possession of a drug.”
The report, which does not include information about state criminal prosecutions, showed a downward trend in federal criminal cases overall. That includes drug cases, which dropped about four percent since fiscal year 2016—the fifth year in a row that drug cases have declined. Drug crimes involving cocaine and methamphetamine were up slightly, but those involving marijuana fell sharply.
“The number of marijuana cases [3,854] represents a 25.3 percent decline from the year before. Marijuana cases have declined by 45.8 percent since fiscal year 2013.”
Another interesting decline concerns mandatory minimum sentences. About 44 percent of drug offenders were convicted of crimes that carried a mandatory minimum—the lowest percentage since the USSC began collecting that data in 1993. Marijuana offenders were generally given the shortest sentences, averaging 29 months of imprisonment.
But what accounts for the substantial decline in marijuana cases?
Several factors may be at play. Federal marijuana cases have dropped almost 50 percent since 2013—the same year that former U.S. Deputy Attorney General James Cole issued a memorandum, colloquially known as the “Cole memo,” to federal prosecutors on marijuana enforcement priorities. The document has generally been interpreted as a message to U.S. attorneys not to prosecute people complying with state cannabis laws.
Attorney General Jeff Sessions rescinded that memo in January, but he later said it wouldn’t necessarily lead to an increase in federal marijuana cases. The Justice Department doesn’t have the resources to take on “routine cases,” he said.
Paul Armentano, deputy director of NORML, told Marijuana Moment that he viewed the trend as a reflection of “shifting federal priorities among both U.S. drug enforcement and border agents” and “may also be attributable to the reality that international drug trafficking organizations in recent years, following the advent of legalization in several U.S. jurisdictions have largely shifted their efforts away from marijuana.”
In other words, more of the market for cannabis is now being supplied by people following new state laws, so there are fewer people for the feds to prosecute in marijuana trafficking cases.
According to a separate 2018 DEA report, federal seizures of indoor and outdoor grown marijuana fell 37 percent from 2016 to 2017.
“As more and more states move toward regulating domestic cannabis, one can presume that the market for imported cannabis will continue to decline and that the U.S. cannabis market will become of even less interest to [drug trafficking organizations],” Armentano said.
It should be noted that federal marijuana cases account for a small fraction of cannabis enforcement in the United States overall, the bulk of which is done on the state and local levels. For example, there were more than 580,000 arrests for marijuana nationwide in 2016.
California Governor Signs Marijuana Tax Fairness Bill But Vetoes Cannabis In Hospitals
California Gov. Gavin Newsom (D) announced on Saturday that he signed several marijuana-related bills into law—including one that will let legal businesses take advantage of more tax deductions—but also vetoed another measure that would have allowed some patients to use medical cannabis in health care facilities.
Under a section of current federal law known as 280E, marijuana growers, processors and sellers are unable to deduct expenses from their taxes that businesses in any other sector would be able to write off. Until now, California policy simply mirrored the federal approach.
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)
Photo courtesy of Carlos Gracia.
Former FDA Head Floats Federal Marijuana Regulation ‘Compromise’ To Address Vaping Issue
Former Food and Drug Administration (FDA) Commissioner Scott Gottlieb seems to propose changing the scheduling status of marijuana under federal law as a “compromise” to provide limited regulations and promote research.
In an op-ed published in The Wall Street Journal on Friday, Gottlieb said the recent spike in vaping-related lung injuries involving contaminated THC cartridges demonstrates the need for federal regulations.
While he expressed frustration over the “federal government’s decade-long refusal to challenge state laws legalizing pot,” he also recognized that enforcing prohibition in legal states isn’t politically practical and floated a “feasible compromise” that would “require Congress to take marijuana out of the existing paradigm for drug scheduling, especially if Congress wants to allow carefully regulated access for uses that fall outside FDA-approved drug indications.”
That language leaves room for interpretation, but he goes on to say that the “ship has probably sailed on legalization for recreational use” and that “regulation of the potency of THC compounds, the forms they take, how they’re manufactured, and who can make purchases ought to be possible.”
Gottlieb stopped short of explicitly backing descheduling, which would represent a formal end to federal prohibition. Still, his recommendation that the government control aspects of legal marijuana markets like THC potency is a more concrete position than he’s taken in recent weeks, where he’s repeatedly bemoaned the lack of regulations and the gap between state and federal cannabis laws as contributing to vaping issues without endorsing a specific policy to correct it.
It’s clear in the editorial that the former commissioner feels Congress has missed its opportunity to prevent the proliferation of state-legal cannabis programs. And he criticized the Obama administration for issuing guidance that offered states some assurances that the Justice Department wouldn’t interfere in their markets, as well as congressional riders barring the department from using its funds to enforce prohibition against medical cannabis patients and providers following state laws.
My Op Ed in today’s @WSJopinion – The tragic vape injuries involving THC demand that we consider a federal reckoning when it comes to the dangerous conflict between state and federal pot laws that leave federal regulators on sidelines https://t.co/HGptTfx8Db
— Scott Gottlieb, MD (@ScottGottliebMD) October 11, 2019
“The result is an impasse,” he wrote. “Federal agencies exert little oversight, and regulation is left to a patchwork of inadequate state agencies. The weak state bodies sanction the adoption of unsafe practices such as vaping concentrates, while allowing an illegal market in cannabis to flourish.”
One area where FDA might be able to exercise its regulatory authority in this grey space would involve oversight of vaping hardware. Because the agency is able to regulate the “components and parts” of vapes for tobacco use—and because companies generally market those products as being intended for the use of vaporizing herbs and concentrates generally—it could be argued that FDA has jurisdiction over regulating the devices. However, that would still prove challenging “without clear laws and firm political support,” Gottlieb said.
My Op Ed in @WSJopinion – The conflict between federal and state law when it comes to marijuana has created a dangerous gap in oversight. It's about time we consider a new federal paradigm when it comes to regulation of cannabis and its active ingredients https://t.co/QifVa5Dbfq
— Scott Gottlieb, MD (@ScottGottliebMD) October 13, 2019
“THC is currently illegal under federal law,” he said. “Right now there’s no middle ground allowing federal agencies to scrutinize these compounds for their manufacturing, marketing and safety.”
Again, it’s not exactly clear what kind of federal regulation Gottlieb is proposing to Congress. He spends part of his op-ed noting the difficulties scientists face in obtaining high quality cannabis for research purposes—an issue that policymakers have indicated rescheduling could resolve—but he also said the government should ensure that any reform move is “backed up with oversight and vigorous enforcement to keep a black market from continuing to flourish and causing these lung injuries.”
That’s led some to assume he’s talking about descheduling and providing for broad regulations, as regulating the market is largely viewed as a primary means of disrupting the illicit market and enforcing safety standards for marijuana products. But the continued ambiguity of his position raises questions about whether he’s actually proposing Congress should go that far.
“The protracted hand-wringing over federal cannabis policy must stop,” he said. “The tragic spate of fatalities related to vaping of pot concentrates means the time has come for Congress and the White House to stop blowing smoke and clear the air.”
Mexican Senate Committees Will Introduce Marijuana Legalization Bill Next Week
Mexican Senate committees will introduce an updated proposal to legalize marijuana for adult use within days.
During a meeting on Thursday, members of the Health, Justice, Public Security and Legislative Studies Committees announced that they would remain in permanent session as they go through various legalization bills that lawmakers have already filed and present a comprehensive new piece of legislation on Thursday.
Sen. Miguel Ángel Navarro Quintero of the ruling MORENA party, who is a cosponsor of one existing reform bill, said the development “is a positive step to regulate—it is definitely a positive step,” according to TV Aztecha.
The primary focus of the committees will be on legislation introduced by Interior Secretary Olga Sánchez Cordero last year, senators said. However, there are about a dozen other legalization bills on the table, including one to have the federal government control the marijuana market, and they said provisions of each proposal would be taken into consideration.
The panels will also look at public input and expert testimony—including a panel led by a former White House drug czar—that were gathered as part of a weeks-long series of cannabis events that the Senate organized.
“It is a backbone that we are taking into account,” Sen. Julio Menchaca of the MORENA party said of Sánchez Cordero’s bill, which the cabinet member filed while previously serving as a senator, adding that “each of the initiatives that different senators have presented are also very important.”
Quintero said “if we are committing an open parliament, all opinions must be taken into account, because if not, we would be simulating a process.”
If the committees are successful in advancing the legislation, that would put the chamber one key step closer to meeting a deadline imposed by the Supreme Court last year. After ruling that the country’s ban on possession and cultivation of cannabis by adults is unconstitutional, it gave lawmakers until the end of October to change federal drug policy.
The leader of the MORENA party in the Senate, Sen. Ricardo Monreal, said earlier this month that the chamber was on track to vote on a legalization bill ahead of that deadline.
Separately, the chairman of the Senate’s Agriculture Committee, Sen. José Narro Céspedes, said on Thursday that legalization will be an economic boon for farmers and must be implemented in a way that disrupts the illicit market.
Photo courtesy of Mike Latimer.