Federal Sentencing Commission’s New Marijuana Guidelines Directing Judges To Treat Past Convictions More Leniently Officially Take Effect

New federal guidelines from the U.S. Sentencing Commission (USSC) advising judges to treat prior marijuana possession offenses more leniently have officially taken effect.

About seven months after members of the commission voted to promulgate a series of amendments—including a multi-part criminal history revision that adds cannabis possession as an example of an offense that generally warrants sentencing discretion—the new guidelines became effective on Wednesday.

Federal judges have historically been directed to take into account prior convictions as aggravating factors when making sentencing decisions in new cases. But as more states have moved to legalize marijuana, advocates have pushed for the updated guidelines to make it so that a person’s cannabis record doesn’t necessarily add criminal history points that could lead to enhanced sentences.

Congress was given an opportunity to challenge the revised guidelines after they were approved by the commission, but lawmakers declined to do so. The Justice Department testified in support of the amendment at a USSC public hearing in March.

The updated guidelines don’t remove marijuana convictions as criminal history factors entirely, but cannabis possession-related sentences are now cited as an example of “when a downward departure from the defendant’s criminal history may be warranted.”

“While marihuana remains a Schedule I controlled substance under the federal Controlled Substances Act (CSA), subjecting offenders to up to one year in prison (and up to two or three years in prison for repeat offenders), many states and territories have reduced or eliminated the penalties for possessing small quantities of marihuana for personal use,” a synopsis of the new policy notes.

According to USSC, simple cannabis possession convictions increased the criminal history score of eight percent of all federal offenders in the 2021 fiscal year. And that resulted in a higher criminal history designation for 40 percent of those people, which can lead to harsher sentencing decisions.

“Most marijuana possession priors were for state court convictions resulting in less than 60 days in prison,” the commission said.

The term “downward departure” refers to situations where federal judges impose sentences that are lower than the minimum recommended under current guidelines. In essence, the amendment would codify that simple cannabis possession, “without an intent to sell or distribute it to another person,” is a prime example of a case that should warrant sentencing discretion.

Here’s the newly effective commentary language on cannabis possession for the sentencing guidelines:

Downward Departures.— (A) Examples.—A downward departure from the defendant’s criminal history category may be warranted based on any of the following circumstances:

…

(ii) The defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person.

Under the commentary of the prior guidelines on downward departures, there was no explicit reference to cannabis. Instead, USSC gave one example of a case that could warrant a sentencing classification reduction if “the defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period.”

Criminal history is one of two main factors that judges are encouraged to use to determine a person’s sentence. There are six levels of criminal history, and the higher the level, the more severe the sentence is supposed to be.

USSC released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.

While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

USSC first said last year that it was looking into revising its guidelines to change how marijuana possession convictions should affect a person’s criminal history calculation (CHC) in sentencing decisions.

The body then issued proposed language and collected public comment, but didn’t end up changing the marijuana section in response to submitted feedback.

The commission’s decision to reevaluate marijuana sentencing guidelines came weeks after President Joe Biden issued a mass pardon for people who’ve committed federal cannabis possession offenses and directed an administrative review into how marijuana is classified under the Controlled Substances Act (CSA).

The U.S. Department of Health and Human Services (HHS) has since advised the Drug Enforcement Administration (DEA) to move marijuana from Schedule I to Schedule III under the CSA, and the law enforcement agency is actively carrying out its own review before making a final determination.

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While federal drug cases are prevalent in the U.S. criminal legal system, marijuana-related convictions have been on the decline as more states have moved to legalize cannabis and prosecutorial priorities have shifted.

The commission released report in March that found that federal marijuana trafficking cases continued to decline in 2022.

Federal data from Customs and Border Protection (CBP) that was released in January shows that cannabis seizures fell to a record low in Fiscal Year 2022, continuing an enforcement trend that advocates attribute to the state-level legalization movement.

Arrests for marijuana made up nearly a third of all drug arrests in the U.S. in 2022, according to a FBI report released last month. As with last year’s report, however, inconsistencies in the data and recent changes to the agency’s methodology make it difficult to draw year-to-year comparisons or meaningful conclusions about cannabis and broader drug enforcement trends.

The Drug Enforcement Administration (DEA) also says it made fewer marijuana arrests in 2022, even as the number of cannabis plants eradicated by the agency grew.

A report from the Government Accountability Office (GAO) released last year also paints a clearer picture of who is getting caught up in enforcement activities. At checkpoints across the country, agents are mostly seizing small amounts of marijuana from American citizens rather than busting large shipments from international cartels.

In another report from last year, the Congressional Research Service said that state-level legalization, combined with international reform efforts, has reduced demand for illicit marijuana from Mexico. Congressional lawmakers have also recently cited the impact of legalization on transnational drug cartel operations.

Also, consistent with other studies and federal reports, the analysis revealed a significant decline in cannabis seizures at checkpoints overall since 2016. In 2016, there were 70,058 pounds of marijuana seized at checkpoints by Border Patrol, compared to 30,828 pounds in 2020.

Separately, in the U.S. Senate, bipartisan members recently filed bills to lower mandatory minimum sentences for people with non-violent federal drug convictions and protect those facing such charges from having to undergo automatic pre-trial detention.