By: Oriana Alexander
As many states enact laws that legalize and decriminalize marijuana, the federal government continues to prosecute and sentence for the possession and distribution of marijuana. Currently, eighteen states, Washington, D.C., and Guam have legalized marijuana.[1] In 2020, the value of legal cannabis sales in the United States hit a record $17.5 billion, with demand up 46 percent from 2019.[2]
Despite the growing demand and increased profitability of the legal cannabis industry at the state level, marijuana remains classified as a Schedule I substance under the Controlled Substances Act at the federal level.[3] Schedule I classification means that the government believes marijuana has no medical use and a high potential for abuse.[4] Schedule I classification at the federal level along with full prohibition of marijuana in some states have created sentencing disparities for those with marijuana-related offenses. In some federal circuits, those who possess even small quantities of marijuana may face harsh penalties through mandatory minimum sentences under the federal sentencing guidelines.
Marijuana Legalization and Sentencing Disparities
The legalization of cannabis removes all legal prohibitions against it and allows it to be available to the adult general population for purchase and use at will, similar to tobacco and alcohol.[5] Colorado was the first state to legalize the use of marijuana in 2012.[6] Colorado allows citizens to possess up to one ounce of marijuana without criminal penalties, but cities and counties in the state can pass stricter regulations.[7] In 2021, Virginia, New York, New Mexico, and Connecticut were the most recent states to legalize the possession of marijuana for personal use.[8]
In addition to legalization, 27 states and the District of Columbia have decriminalized possession of small quantities of marijuana.[9] Decriminalization of cannabis means it remains illegal, but the legal system will not prosecute a person for possession under a specified amount.[10] Instead, penalties may range from no penalties at all, to civil fines, drug education, or drug treatment.[11] For example, in 2019, New York enacted Senate Bill 6589, which made possession of less than one ounce a violation punishable by a $200.00 fine.[12]
ACCA Mandatory Minimums and Marijuana-Related Offenses
Mandatory minimum sentences are imposed by Congress, not judges, and require automatic, minimum prison terms for certain crimes.[13] The Armed Career Criminal Act (ACCA) is a portion of the Comprehensive Crime Control Act of 1984 that increases the minimum prison terms for repeat offenders. Congress implemented the ACCA to deter the “career criminals” from returning to crime after release from prison.[14] In its current form, ACCA imposes harsher sentences on offenders with three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.”[15]
The location and jurisdiction of marijuana-related offenses play a major role in ACCA’s sentencing because the elements of the prior underlying state offenses are used to determine if the crime is a serious drug offense. When applying ACCA, the courts use the categorical approach to determine whether a past state or federal conviction qualifies as a violent crime or serious drug offense.[16] “Serious drug offense” is defined as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance […], for which a maximum term of imprisonment of ten years or more is prescribed by law.”[17] If the drug offense carries up to a 10-year sentence, and a defendant has two prior convictions of violent crime or serious drug offenses, then mandatory minimum sentences are imposed under ACCA.[18] As a result, the prohibition, legalization, or decriminalization of marijuana at the state level can cause significant disparities in sentencing.
For example, in the Eleventh Circuit, possession of marijuana for anything other than personal use can carry an ACCA mandatory minimum sentence of fifteen years.[19] In Alabama, first-degree marijuana possession is defined as possession of marijuana for use other than personal use, and is a Class C felony that carries a maximum term of imprisonment of ten years.[20] In one case, possession of a small quantity of marijuana to share with another was evidenced by a male defendant’s possession of partially smoked marijuana cigarettes with lipstick marks.[21] This first-degree marijuana offense subjected the defendant to ACCA mandatory minimum sentencing enhancements.[22]
State-level sentencing enhancements for marijuana-related offenses can couple with the ACCA to increase sentencing disparities, as demonstrated by the case Lomax v. United States. A Pennsylvania statute prohibiting possession of marijuana with intent to deliver carries a maximum sentence of only five years.[23] However, the defendant in Lomax v. United States had two prior convictions that under a Pennsylvania anti-recidivism statute increased the maximum years of imprisonment to 10 years.[24] In Lomax, the Third-Circuit Court of Appeals held that the defendant’s ten-year sentence as a result of the recidivism provision statute made the marijuana offense a serious drug offense.[25] As a result, the defendant faced state and federal ACCA mandatory sentencing enhancements.[26]
Decriminalization and Resentencing at the Federal Level
As more states move to legalize and decriminalize marijuana, many states are moving to reduce penalties and retroactively expunge sentences related to marijuana-related offenses. Since 2014, at least 16 states have amended marijuana penalties.[27] Forty-one states, two territories, and the District of Columbia have enacted record clearing laws that may apply to cannabis, and seven states have record clearing laws that specifically address cannabis offenses.[28]
States are also advocating for the reclassification and decriminalization of marijuana at the federal level. In its current congressional session, the Michigan legislature passed a resolution (HR 151) urging Congress of the United States to clarify its position on the legality of marijuana under the Federal Controlled Substances Act.[29] In 2018, several states addressed the federal role in marijuana policies. California passed a resolution urging Congress to pass legislation that would allow financial institutions to provide services to the cannabis industry.[30] Bills or resolutions were introduced in 2018 in Alaska, California, Georgia, Iowa, Massachusetts Michigan, New Jersey, and Pennsylvania that call on Congress to reschedule or otherwise allow state authority for marijuana policy.[31]
In 2018, the National Conference of State Legislatures (NCSL) also urged Congress to support a bill to protect state sovereignty concerning marijuana regulation.[32] NCSL also sent a letter in support of the bill’s prohibition of the United States Department of Justice from using federal funds to prosecute states that implement their own laws regarding the use, distribution, possession, or cultivation of marijuana for medical purposes.[33]
Several bills have been introduced to legalize marijuana at the federal level by both Republican and Democrat congress members. The States Reform Act was introduced by South Carolina’s Republican Congresswoman Nancy Mace in November 2021 and has been endorsed by Amazon.[34] Congressional Democrats have introduced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act which seeks to remove cannabis from the Controlled Substance Act and expunge records for those convicted of using marijuana.[35] If marijuana is rescheduled at the federal level, then laws must be enacted to retroactively resentence defendants with marijuana-related sentencing enhancements under ACCA.
The First Step Act should be expanded, or new laws should be introduced to reduce sentencing enhancements for marijuana-related offenses under the Armed Career Criminal Act. [36] In 2018, the First Step Act created a retroactive resentencing provision to decrease sentencing disparities between crack cocaine offenses and powder cocaine offenses, under the Fair Sentencing Act of 2010.[37] The Fair Sentencing Act increased the quantity of crack cocaine that triggered mandatory minimum penalties and eliminated the statutory mandatory minimum sentence for simple possession of crack cocaine.[38] Under the First Step Act, defendants, the Director of the Bureau of Prisons, the attorney for the government, or the courts can make a motion for retroactive resentencing to under these new guidelines.[39] If marijuana is decriminalized or legalized at the federal level, then similar provisions should be applied to mandatory minimum sentences for serious marijuana-related offenses under the ACCA to further sentencing equity.
[1] Claire Hansen, et al., Where Is Marijuana Legal? A Guide to Marijuana Legalization, U.S. News & World Rep., Jan. 6, 2022, https://www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization.
[2] Will Yakowicz, U.S. Cannabis Sales Hit Record $17.5 Billion As Americans Consume More Marijuana Than Ever Before, Forbes, Mar. 3, 2021, https://www.forbes.com/sites/willyakowicz/2021/03/03/us-cannabis-sales-hit-record-175-billion-as-americans-consume-more-marijuana-than-ever-before/?sh=37e13a4b2bcf.
[3] Hansen Supra.
[4] Id.
[5]Dragan M. Svrakic, et al., Legalization, Decriminalization & Medicinal Use of Cannabis: A Scientific and Public Health Perspective, Mo. Med. The J. of Mo. St. Med. Ass’n, 90-98 (2012).
[6] Id.
[7] Id.
[8] Casey Leins, et al., States Where Recreational Marijuana Is Legal, U.S. News & World Rep., Jan. 6, 2022, https://www.usnews.com/news/best-states/slideshows/where-is-pot-legal
[9] Michael Hartman, Cannabis Overview, Nat’l Conf. of St. Legislators, July 6, 2021, https://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx
[10]Syrakic Supra.
[11] Id.
[12] Michael Hartman, Cannabis Overview, Nat’l Conf. of St. Legislators, July 6, 2021, https://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx.
[13] Families Against Mandatory Minimums, Sentencing 101, https://famm.org/our-work/sentencing-reform/sentencing-101/
[14] Haley E. Roach, Location, Location, Location: How the ACCA’s Categorical Approach Produces Vast Sentencing Discrepancies, and Why the Sentencing Guidelines Should Replace It, 52 Ind. L. Rev. 511, 530 (2019).
[15] United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009).
[16] Descamps v. United States, 570 U.S. 254, 254, (2013).
[17] 18 U.S.C. § 924(e)(2)(A)(ii); United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009).
[18] Id.
[19] Id.
[20] Id; see United States v. Barnes, 280 F. App’x 910, 913 (11th Cir. 2008); Ala.Code §§ 13A-12-213(b) & 13A-5-6(a)(3).
[21] Harris v. State, 594 So.2d 725, 728-29 (Ala.Crim.App.1991).
[22] Id.
[23] United States v. Lomax, 744 F. App’x 754, 758 (3d Cir. 2018); PA ST 35 P.S. § 780-113.
[24] PA ST 35 P.S. § 780-113.
[25] United States v. Lomax, 744 F. App’x 754, 758 (3d Cir. 2018).
[26] Id.
[27] Michael Hartman, Cannabis Overview, Nat’l Conf. of St. Legislators, July 6, 2021, https://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Will Yakowicz, Republican Congresswoman Nancy Mace Is On A Mission To Legalize Cannabis—And Amazon Just Got Behind Her, Forbes, Jan. 25, 2022.
[35] Saul Elbein, Congress to take up marijuana reform this spring, The Hill, Dec. 18, 2021, https://thehill.com/homenews/house/586399-congress-to-take-up-marijuana-reform-this-spring.
[36] U.S. Sent’g Commission, ESP Insider Express Special Edition: The First Step Act of 2018, Off. of Educ. Sent’g Practice, Feb. 2019, https://www.ussc.gov/sites/default/files/pdf/training/newsletters/2019-special_FIRST-STEP-Act.pdf.
[37] Id.
[38] Id.
[39] Id.
