What to do with the prisoners of a failed war? That war being the so-called “war on drugs”.
Since 2012, when voters in Colorado and Washington approved the tax and sale of recreational marijuana, the cognitive dissonance of America’s drug penalties has become even more absurd.
Where we once incarcerated people for growing and selling “just a plant,” we’re now incarcerating people for growing and selling “just a plant” that tens of millions of people can grow and sell legally.
Marijuana is legal only in certain states, and illegal under federal law. Still, it’s worth asking what Congress would do with the thousands of pot offenders sent to federal prison each year if we repealed, or even just reformed, federal pot laws.
In 2010, Congress voted to change federal penalties for crack cocaine with the Fair Sentencing Act. Prior to the law’s passage, 5 grams of crack cocaine triggered the same mandatory minimum sentence as 500 grams of powder cocaine. Congress reduced that disparity, from 100-to-1 to 18-to-1, which significantly reduced crack cocaine sentences. But Congress did nothing to change the sentences of the more than 8,000 federal crack prisoners who were locked up when the bill was signed into law.
So the repeal of federal marijuana laws could likely leave us with many thousands of federal pot prisoners serving sentences longer than what they’d receive in a post-reform courtroom.
What to do with these prisoners becomes all the more pressing when you consider that people still die in prison for marijuana offenses. In fiscal year 2013, more than 40% of all people who received life without parole sentences in federal courts were drug offenders, and 6% of those were marijuana sellers, according to the U.S. Sentencing Commission.
If Congress changes marijuana laws without allowing currently imprisoned pot offenders to seek new sentences, should this president or the next simply throw open the gates?
Clemency feels particularly appropriate for marijuana prisoners, who sit in cells for trafficking and dealing while state legislators argue over how to spend the revenues generated from pot taxes and newspapers tell us how to incorporate the plant in our cooking.
It should be cruel and unusual, indeed, to mete out life-without-parole-sentences for a drug so mainstream that Colorado is using state-collected pot taxes to build new schools.
In 2014, then-Deputy Attorney General James Cole announced a Justice Department initiative to review the petitions of federal prisoners serving sentences longer than what they’d receive if sentenced today, and to grant clemency to those whose early release would not compromise public safety. The second wave of clemencies granted since the initiative launched included both crack offenders and a single marijuana offender.
But clemency, by its very nature, benefits only a small number of people. Even if President Obama were to grant 2,000 commutations over the next 21 months — an unprecedented number — there are roughly 100,000 drug offenders in federal prison. The vast majority would be left to serve excessively long sentences.
Our drug policies and not just those pertaining to marijuana require sweeping, comprehensive, grand reform.
Federal drug laws across the board, as well as drug laws in states that have yet to embrace reform, are irreconcilable with evidence-based practices that actually reduce addiction and crime. One-size-fits-all mandatory minimum sentences for drug offenses are particularly arbitrary, harsh, insanely expensive, and, in the case of marijuana, incompatible with what a growing majority of voters want.
While marijuana may be the illicit drug used most by Americans, and thus the one we are most comfortable with as a culture, marijuana growers and dealers aren’t disproportionately punished when compared to the makers and sellers of other illicit drugs.
All drug offenders are getting a raw deal from our criminal justice system. It would be a mistake to say, “Let out the people who sell a drug that I’m comfortable with, and to hell with all the rest.” Federal and state legislators need to address bad policies for all drug types, and then establish a clear route to resentencing for pot dealers — and everybody else.