Student presentation exploring past marijuana convictions and sentences amid reform efforts

I am always excited by the wide range of diverse topics that students in my Marijuana Law, Policy & Reform seminar focus upon for their research and class presentations.  But, because I was brought to this topic through my long-standing interest in criminal justice reform, I get extra excited when a student digs into criminal law stories.  And the second presentation slated for this week is in this space, and the topic is described by my student this way (along with background readings):

Efforts to change marijuana law at both the state and federal level are never-ending.  With so much excitement around the prospect of new laws, the passing of new laws, and the possibility of new business, one group appears to be left behind more often than not: the people who have already been affected by the criminalization of marijuana and are currently serving time in prison.

At the federal level while marijuana is not legal, Biden pardoned roughly 6,500 people convicted of simple possession of marijuana in October of 2022.  This step showed so much promise of change, but what wasn’t accounted for was how simple possession charges can affect the sentences of other people within the federal sentence.  Maybe someone is convicted of heroin possession, but they have two previous marijuana possession charges — their criminal history increases, increasing their sentence.  How do we account for these disparities? One person is pardoned, no longer serving time for marijuana possession while another gets months tacked onto their sentence for that same offense.

At the same time, simple possession marijuana offenders are not the only group facing disparities.  People serving longer sentences in federal prison for trafficking marijuana also face disparities in sentence lengths due to mechanisms like compassionate release.  A system set up to help people — and it does — does not reach every person equally in prison.  Depending on your judge, you may have an order granting your motion for compassionate release because the judge understands the marijuana landscape has changed over the last 20 years.  However, on the other hand, you may receive an order from your judge denying your motion for compassionate release because to them trafficking marijuana is still a crime at the federal level, despite what states are doing.  How do you remedy one person receiving relief because of changes in marijuana law while another person being denied compassionate release because changes in marijuana law does not warrant a sentence change?

Maybe there is no good answer — but one thing is for sure, this group of people, feeling the impacts of antiquated marijuana law, cannot be left behind.

Background reading:

US Sentencing Commission, “Weighing the Impact of Simple Possession of Marijuana” (January 2023) 

From CNBC, “Biden pardons thousands of people convicted of marijuana possession, orders review of federal pot laws” (October 2022)

 Congressional Research Service, “Recent Developments in Marijuana Law” (December 2022)