Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.

Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”

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.

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance.

“The President has made clear his views that ‘no one should be in jail just for using or possessing marijuana,’ and on October 6, 2022, he issued a pardon proclamation meant to ‘help relieve the collateral consequences arising from these convictions,'” Wroblewski wrote, referring to the clemency President Joe Biden issued for several thousand people who’ve committed federal cannabis possession offenses.

“The Commission’s proposal would accord with that sentiment, and also account for the twenty-one states and territories that have removed legal prohibitions, including criminal and civil penalties, for the possession of small quantities of marijuana for recreational use,” the DOJ official said.

Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”

In the written testimony, DOJ’s Wroblewski further offered recommended language that it believes could help clarify the circumstances under which a “downward departure” in sentencing could be warranted for cannabis cases.

Judges should take into account factors such as “the nature of the original charges, the facts surrounding the offense (including the quantity of marihuana possessed, the manner in which the marihuana was packaged, the presence of large quantities of cash, the presence of drug ledgers, the possession of firearms, and other evidence of drug trafficking activity), whether the defendant’s conviction was the result of a plea agreement that involved the dismissal of drug trafficking charges, and whether the offense was subsequently pardoned,” DOJ recommended.

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.

The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”

The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”

Under the the current sentencing guidelines on downward departures, there’s no explicit commentary reference to cannabis criminal history. USSC gives 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.”

If the proposed amendment that DOJ is backing is ultimately approved by the body, marijuana possession for personal use would be added as another relevant example. It’s unclear when the commission will take a vote on the measure, but a public comment period is still open.

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 separately 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 in October 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.

In Fiscal Year 2014, there were 2,172 federal marijuana possession cases. That dropped to just 145 in this past fiscal year, the commission’s recent report showed. And 70 percent of people with possession cases over the past five fiscal years received an average prison sentence of five months.

USSC’s findings are consistent with other recent federal data showing a downward trend in marijuana cases, including a recent finding that Customs and Border Protection (CBP) cannabis seizures fell to a record low in Fiscal Year 2022, dropping nearly 95 percent over the past decade.

Another report released by the commission last year found that federal marijuana trafficking cases have continued to decline in 2020 as more states have moved to legalize.

In October, USSC published a detailed analysis looking at the impact of Biden’s marijuana pardons, showing the geographic and demographic breakdown of those who are eligible for relief.