Feds Consider Eliminating Marijuana Possession as an Aggravating Factor

The U.S. justice system takes a hard line on drug crimes. A drug offense conviction can ruin an individual’s career prospects, education opportunities, and access to housing. A drug conviction can also be financially crippling.

National sentencing guidelines give federal judges the power to consider a person’s prior convictions and criminal history when sentencing the person for a new criminal conviction. These guidelines mean marijuana offenses are aggravating factors when a judge makes sentencing decisions.

A bipartisan U.S. government panel is pushing a proposal that could adjust sentencing guidelines and allow judges to treat prior marijuana possession offenses more leniently if those prior offenses didn’t include the intent to sell or distribute. This new proposal may be another positive step towards reforming the U.S. justice system and how it treats drug offenders.

History Behind Federal Classification of Marijuana

Marijuana has been classified as a Schedule I illegal substance since 1972. Schedule I drugs are deemed substances with no medical use or value and that have a high potential for abuse. Other Schedule I drugs include heroin, LSD, and ecstasy. Cocaine and methamphetamine, two drugs notorious for crippling communities and devastating lives, are classified as Schedule II substances for comparison.

For decades people have questioned why marijuana is a Schedule I substance when there are numerous scientific studies pointing to the therapeutic and medicinal benefits of the plant. Unfortunately, the root of the problem stems from racism and a political agenda to crush anti-war movements in the 1970s. In 1972, the Shafer Commission said cannabis was as safe as alcohol and recommended ending the prohibition of the drug. President Richard Nixon and Attorney General John Mitchell had other plans, classifying marijuana as a Schedule I substance. This move, in part, was to push back against people of color and the anti-war left protesting Vietnam, two perceived threats to Nixon’s administration and the country.

Since then, America’s war on drugs and the vilification of marijuana culture have shaped the legal landscape. Those caught in possession of small amounts of marijuana faced stiff sentences and legal penalties. These penalties make it more challenging to find work and housing and earn a piece of the American dream. Legal penalties also mean a person could face an even more significant sentence down the road if they find themselves back in court for another criminal offense.

Proposed Changes to the Legal System

Recently, the federal U.S. Sentencing Commission, or USSC, voted to propose an amendment that would update what many consider outdated sentencing guidelines for judges. Today, federal judges must consider a person’s prior convictions, including minor cannabis offenses, when determining sentencing for a new criminal conviction. Prior convictions are aggravating factors, meaning these previous convictions can influence how a judge sentences a person for a new criminal offense. For example, an individual with a prior offense on their criminal record may receive a harsher punishment compared to someone without a prior marijuana conviction.

There are legitimate reasons a judge may want to consider a person’s past criminal history when handing down a sentence for a more recent criminal conviction. The USSC proposal does not suggest that criminal convictions, like a marijuana conviction, be erased from a person’s criminal history. Instead, the panel suggests new guidelines that allow marijuana possession to be considered a downward departure. A downward departure is a legal concept that refers to situations where a judge can impose a sentence lower than the minimum sentencing guideline recommendations in circumstances where the criminal history category “substantially overrepresents the seriousness” of the crime. Essentially, the new proposal suggests that a judge should have the power to exercise leniency when sentencing an individual with a criminal history of marijuana possession.

The decision to reexamine aggravating factors and marijuana possession comes as more states move to legalize medical and recreational marijuana use. States like Oregon are even going so far as to decriminalize the possession of small amounts of drugs. In October 2022, President Joe Biden announced pardons for those with federal convictions for simple marijuana possession and urged states to do the same at their level. The chairman of the USSC says the patchwork of state laws governing marijuana possession and a changing national position on the substance means the panel needs to prioritize its review of sentencing guidelines.

What Comes Next?

Members of the USSC voted to propose the amendment to update sentencing guidelines, but there is still a long way to go before the proposal reaches the stage where it could impact those previously convicted of marijuana offenses. The commission now seeks public comment on the proposal and is looking for input and other ideas. Members say that they are open to hearing feedback from the public and would entertain comments on whether omitting cannabis possession as an aggravating factor is appropriate since many jurisdictions have recently decriminalized cannabis.

The public comment period expires on March 14th. The panel then decides whether it will adopt the proposed amendment or make additional adjustments. However, several U.S. lawmakers and conservative Supreme Court Justices criticize the downward departure approach calling it “unfair.” Before being appointed to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh raised significant concerns about the practice, worrying some that challenges for the measure could be ahead.

You Can Add Your Voice to the Mix

Those interested in voicing their opinion about the USSC’s proposed changes can submit their comments and concerns online. The United States Sentencing Commission has an open public comment submission portal on its website. The public comment period is open to anyone. However, comments must be submitted before March 14th, 2023. The commission also accepts formal public comments submitted by mail.

Change doesn’t happen overnight. It is a process, sometimes slow to reach fruition. Sections of the U.S. legal system are working to enact change. Public input is one of the most powerful ways individuals can help shape the country and bring about reform.

Are you interested in learning more about marijuana reform and cannabis culture? For more news, recipes, and product reviews, continue checking out Cannabutter Digest.