Equity

America doesn’t have 40,000 cannabis prisoners

By Alex Halperin
Jul 1, 2022
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Source: NYPL

The idea that ‘No one should be locked up for a plant’ is both a cherished belief in cannabis circles and a central argument for the legal industry’s existence. 

Since its founding in 2019, Last Prisoner Project, a non-profit brainchild of industry pioneer Steve DeAngelo, has become of the most prominent cannabis charities by pledging to free the 40,000 people locked up for cannabis in this country.

Dozens of prominent operators, brands and ancillary companies participate in LPP’s “Partners for Freedom” program. Dispensaries and delivery services in dozens of states offer LPP’s “Roll It Up for Justice” promotion, which invites customers to donate the spare change from their orders.

As LPP has grown, the 40,000 figure has gained a quasi-official status. It was cited to me, for example, by a spokesperson for Washington, D.C.-based industry lobby U.S. Cannabis Council, whose corporate members include several LPP donors.

However, a WeedWeek analysis of publicly available data suggests the number of cannabis prisoners could be substantially lower. For example, the 40,000 figure includes 11,730 federal cannabis prisoners, but two other non-profits put the number at roughly 3,000.

A tough question

Cannabis prisoners aren’t easy to count.

Statistics on the criminal justice system, and prisoner populations in particular, are notoriously late, undercounted and otherwise inadequate. Federal and state governments each compile their their own data, and each decides what data to collect and how reliably. States also depend on reporting from local police departments, and the results vary.

  • Cannabis prisoners can also be hidden in specialized prison systems within the military, the immigration system and other population segments.

Then you have to decide who to include as a cannabis prisoner. LPP’s home page describes tens of thousands of cannabis prisoners narrowly as individuals “sitting in a cell for years, decades, or even for life convicted of an activity that is no longer a crime.” (As recently as mid-June it said there were 40,000. )

But carceral life isn’t always so clean cut. This definition excludes several populations about whom there’s even less adequate data than convicted offenders. They include:

  • Populations in local jails who may be awaiting trial or sentencing
  • Juveniles
  • Parolees locked up for failing a drug test
  • Prisoners serving time for cannabis and other offenses

(Typically prisoners awaiting trial or sentencing stay in locally-run jails and get relocated to state prisons to serve their sentences.)

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The roots of 40,000

Last Prisoner Project’s 40,000 figure comes from multiplying data from 2011 by data from 2004.

It takes the 2011 counts of state (225,200) and federal (94,600) drug prisoners and multiples them by the proportions of state and federal drug prisoners imprisoned for weed in 2004. The latter figures appear in a 2007 report from the U.S. Justice Department’s Bureau of Justice Statistics:

According to the data, in 2004, 12.7% of state drug prisoners and 12.4% of federal drug prisoners were locked up for weed.

  • LPP reaches 40,000 by multiplying 12.7% by the 225,200 state drug prisoners to reach 28,600 and 12.4% by the 94,600 federal drug prisoners to get 11,730.
  • Together that’s 40,330 prisoners.

When I reached out to LPP several months ago, a spokesperson said they don’t love using 40,000 because it’s old and it doesn’t include the hard to count prisoner populations. “It’s one of the best estimates we have as authorities provide so little cannabis-specific criminal justice data,” she wrote. “We still suspect any ‘point-in-time’ cannabis incarceration number is higher than 40,000.”

  • This document she provided acknowledges several limitations in the method, which lead LPP to conclude that 40,000 “dramatically undercounts” the number of prisoners.

However, neither the spokesperson nor the document acknowledge two trends which suggest the cannabis prisoner population has fallen in the last decade:

  1. Overall prison and jail populations have fallen since 2011, the last year accounted for by LPP
  2. Legalization and changing attitudes have drastically altered cannabis-related prosecutions.

Incarcerated populations have fallen

The combined population of state and federal prisons peaked at 1,553,000 in 2009. Over the next decade it fell 174,000 (11%) to 1,380,000, according to non-profit The Sentencing Project. During the pandemic, data collected by the non-profit Prison Policy Initiative found the prison population fell an additional 15% between early 2020 and late 2021 (Scroll down to appendix A.) though incarcerated populations have begun to climb again.

Combining the Sentencing Project and Prison Policy Initiative data shows that in the last decade state and federal prison populations fell by more than 400,000, about 27%.

  • Additionally, federal data shows that local jail populations remained above 700,000 in the years ahead of the pandemic then dropped about 25%.

As general prisoner populations have fallen, for there to still be 40,000 cannabis prisoners, there would have to be indications of more cannabis arrests and convictions, followed by longer sentences. The available data suggests the opposite.

Federal pot prosecutions have fallen

According to the Bureau of Prisons, the federal inmate population today is between 150,000 and 160,000, roughly what it was in 2001. It had been 25,000 in 1980, and then climbed for the next three decades until it peaked around 219,000 in 2013, up slightly from 217,768 in 2011, the year LPP counts.

Even though marijuana remains federally illegal, the number of federal marijuana prosecutions has fallen as more states have legalized. As this data from the federal judiciary’s Sentencing Commission shows, in 2012 marijuana led to more federal convictions than any other drug, around 7,000. By 2020, it was the least sentenced drug category, with just under 1,000.

During the same period federal cannabis sentences fell slightly in length while remaining the lowest of any drug type.

  • While there are many exceptions, overall this suggests that most people convicted of a federal marijuana crime in 2017 or before are no longer in prison.

Based on these trends, the criminal justice non-profit Recidiviz estimates that in 2020 there were 3,016 individuals serving time in federal prison for marijuana offenses. LPP’s figure of 11,730 federal prisoners is almost 4 times as many.

  • Weldon Angelos, who started cannabis justice non-profit The Weldon Project, estimates the current figure at between 2,600 and 2,700.

Now the states

Do the same trends prevail in state prison systems? The data isn’t as straightforward, but the available evidence suggests that they do.

Nationwide, cannabis arrests peaked above 800,000 in 2008. They’ve since fallen to 545,602 in 2019 and then to just over 350,000 in 2020, the first year of the pandemic. Of these, more than 90% were for possession charges, but it’s likely that the overwhelming majority sent to prison were convicted of trafficking or another more serious offense.

  • The Recidiviz report doesn’t propose an estimate for the total number of state cannabis prisoners but says, “Among the 18 states that have legalized REC, incarceration for marijuana related offenses has essentially ceased.”

The state data compiled by the FBI and available in the Crime Data Explorer and reorganized here, has significant flaws. In particular, the number of local agencies included in state counts can vary wildly from year to year.

But it also shows that in a large majority of states where the data is robust, arrests for sales and  manufacturing offenses have fallen since 2011, both in total number and as a portion of all drug trafficking arrests.

  • For example, in Michigan, where voters legalized REC in 2018, sales and manufacturing arrests fell from more than 3,000 in 2011 to less than 200 in 2019.
  • The CDE data shows nationwide arrests for marijuana possession fell 55% to 226,095 between 2011 and 2020. Over the same time period, arrests for more serious cannabis offenses, the ones far more likely to send people to prison, fell more, 68%, to 22,988 arrests in 2020.

Paul Armentano, deputy director at NORML, declined to comment on LPP’s 40,000 number, but said he did not doubt that the total number of people incarcerated for cannabis-related offenses has declined in recent years.

  • Drug Policy Alliance, which has also studied cannabis incarceration for many years declined to comment.

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LPP responds

“I wanted to make sure that the one thing we didn’t do was undercount,” LPP founder Steve DeAngelo told WeedWeek. “I’ve always encouraged LPP to be more, as opposed to less, expansive” (DeAngelo is not involved with LPP’s operations.)

In response to questions for this article, LPP pointed to an unsigned, undated blog post. It appears to concede that while the number of federal cannabis prisoners has fallen, other hard to count prison populations mean that the number of cannabis prisoners at any moment, is still more than 40,000.

Looking at some of these populations, however, they appear unlikely to include huge numbers of cannabis prisoners.

Jail populations are probably the largest of the hard to count populations. It seems likely that the big declines in cannabis arrests have led to fewer people locked up for cannabis in jails, though I haven’t found data to support this.

Tragedy, hypocrisy, injustice

LPP is correct that Americans are still getting locked up for weed:

  • In May, a federal jury in Maryland convicted 27-year old Jonathan Wall of shipping hundreds of pounds from California to Maryland over several years. Several of Wall’s associates pleaded guilty and testified against him. He could face 10 years to life in prison. (This mobile billboard protesting his trial reads, “40,000 Americans are in prison for cannabis.“)
  • Several days after New Jersey voters legalized REC in November 2020, New Jersey family man Humberto Ramirez was sentenced to 2 to 7 years for holding six pounds. Non-violent cannabis convictions from more than 20 years before weighed on his sentence.
  • Weeks ago in Mississippi, which legalized MED this year, the state Supreme Court upheld Allen Russell’s life sentence for possessing an ounce, a requirement of state law due to previous convictions for home burglaries and unlawful possession of a gun.

Despite the tragedy, hypocrisy and injustice of marijuana’s legal situation, and that Black and brown people continue to be disproportionately affected by it, the decline in America’s prison population, including cannabis prisoners, over the last decade, can be seen as progress.

Not only has the number of cannabis prisoners fallen, pot prisoners are getting locked up for different reasons, not just “for a plant.” Ohio State law professor Douglas Berman suggested to the New York Times that the jury which convicted Jonathan Wall for trafficking could have been more offended by his failure to follow the law, than reefer madness style hysteria.

In the case of Wall, this isn’t a distinction DeAngelo recognizes. “This is a sacred plant,” DeAngelo said. “As long as there are places where it’s still illegal anyone who carries it to people who need it is a hero.”

  • Fewer people would apply that word to the heavily armed unlicensed growers flourishing in the southern California desert. They pollute, waste water during a historic drought, scare their neighbors and undermine the licensed industry.

Why doesn’t LPP acknowledge the likely sharp decline in cannabis prisoners over the last decade? Solving any problem benefits from an understanding of its scope.

One possibility is that the idea of 40,000 Americans imprisoned for low-level marijuana offenses is a powerful talking point that ennobles the work of LPP’s donors and adds urgency to legal reform.

Steven Hawkins, Executive Director of Washington D.C.-based industry lobby U.S. Cannabis Council, said the group and several of its members are proud to partner with LPP and called the 40,000 figure a “reasonable estimate.” “The US Cannabis Council and our members will continue to work with the Last Prisoner Project until that number is zero.”