When we talk about marijuana prisoners, it often includes individuals who got in trouble under state marijuana laws, as well as those who were prosecuted under federal law. In terms of total numbers, there are far more people in the state criminal systems than federal, but even at the federal level, there are thousands. Here is a closer look:
Federal marijuana prisoners
This figure isn’t published by the federal government, and so we aren’t certain. The last best estimate was approximately 10,560 individuals back in 2015. Generally speaking, federal enforcement of cannabis laws has steadily declined over the years, so most believe there are fewer than 10,000 federal marijuana prisoners today.1
State marijuana prisoners
While there is some uncertainty over the total number of federal marijuana prisoners, it is clear that state imprisonment for marijuana offenses are orders of magnitude greater than federal cases. According to ACLU reports, in 2018, law enforcement made well over half a million marijuana arrests, which was more arrests than for all violent crimes combined.2 Tens of thousands of prisoners end up behind bars for cannabis offenses each year. Ironically, other individuals are accumulating wealth and pursuing marijuana business opportunities in other jurisdictions at the same time, with the same substance.
It is difficult to determine who is really in prison for marijuana, and there is a large gap in data about people who are currently incarcerated. For instance, what might be reported as an “arrest” may actually be a ticket, so in some cases numbers may be higher than actual arrests. Conversely, a person may not get a jail term in their original sentence, but they might end up in jail if they violated a condition of probation, and those figures are nearly always missing. Finally, there could be multiple offenses that factored into a sentence - not just marijuana, or a person might have gotten a longer sentence for another type of crime because of a marijuana offense. All these complicate the total figures, and can obscure who is actually in jail because of marijuana.
For instance, a report by BJS using data gathered in 2018 leads some to conclude that there are around 32,000 cannabis prisoners (22,000 in state prisons and 10,000 in federal facilities). But the numbers in these reports do not include people incarcerated in local jails, individuals in juvenile facilities, those incarcerated pre-trial, those in jurisdictions who don’t report their statistics, individuals that have cannabis offenses treated as a secondary offense, and individuals on supervised release who have been re-incarcerated due to marijuana-related parole violations.3
It is important to keep in mind that it's not just about sitting in jail, but the significant challenges individuals can face later such as difficulty receiving food stamps, housing assistance, access to education and jobs, and access to federal loans.4 Because of this, many cannabis policy reform advocates are fighting for expungement.
Expungement is a legal process in which the record of an individual's arrest/conviction is removed, destroyed, or otherwise made inaccessible. If a person’s record has been expunged, they can usually answer “no” when asked if they were convicted or arrested.5 Six states have enacted automatic expungement for low-level cannabis cases. “Automatic” means that the state takes care of removing offenses from a person’s history without having to go to court or pay for an attorney. In other states in which expungement is available, individuals are required to initiate a legal proceeding, and many simply don’t have the resources or information on how to do that.6
Generally speaking, federal enforcement of cannabis laws seems to have steadily declined over the years, and if true, it bodes well for the federal cannabis prisoner population. But better reporting by federal law enforcement is necessary to determine more concrete information on the true number of individuals who are in prison for marijuana.