Federal Sentencing Commission Proposes New Marijuana Guidelines For Judges That Would Treat Past Convictions More Leniently

The federal U.S. Sentencing Commission (USSC) held a public meeting on Thursday, where members voted to propose an amendment to update sentencing guidelines to suggest that judges treat prior marijuana possession offenses more leniently.

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.

The new USSC 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,” according to a synopsis.

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.

Here’s the proposed commentary language on cannabis possession for the sentencing guidelines:

Downward Departures.— (A) Examples.—A downward departure from the defendant’s criminal history category may be warranted based on any of the following circumstances:

…

(ii) The defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person.

The commission is seeking public comment on the proposed revision, specifically inviting input on “whether there is an alternative approach it should consider for addressing sentences for possession of marihuana.” For example, USSC is open to feedback on omitting cannabis possession as a criminal history factor altogether if a person’s conviction happened in a jurisdiction that has since decriminalized marijuana.

Following the public comment period that ends on March 14, the commission will decide whether or not to adopt the proposed amendment.

Under the commentary of the current guidelines on downward departures, there’s no explicit reference to cannabis. 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.”

This is now the preferred method of submitting public comments. Watch this brief video for a tutorial on submitting comments via the portal: https://t.co/36hXyE1RzJ

— SentencingCommission (@TheUSSCgov) January 11, 2023

If the new proposed amendment is approved by the body later this year, marijuana possession for personal use would be added as another relevant example.

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 detailed what it’s looking for in public comment on the cannabis sentencing proposal: 

“1. Part C of the proposed amendment provides for a possible downward departure if the defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person. The Commission seeks comment on whether it should provide additional guidance for purposes of determining whether a downward departure is warranted in such cases. If so, what additional guidance should the Commission provide?

2. The Commission also seeks comment on whether there is an alternative approach it should consider for addressing sentences for possession of marihuana. For example, instead of a departure, should the Commission exclude such sentences from the criminal history score calculation if the offense is no longer subject to criminal penalties in the jurisdiction in which the defendant was convicted at the time of sentencing for the instant offense? Alternatively, should the Commission exclude all sentences for possession of marihuana offenses from the criminal history score calculation, regardless of whether such offenses are punishable by a term of imprisonment or subject to criminal penalties in the jurisdiction in which the defendant was convicted at the time of sentencing for the instant offense?”

This public meeting comes days after USSC released a report 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’s chairman, Judge Carlton Reeves, said at Thursday’s meeting that the commission developed the report in response to “the patchwork of state laws regarding simple possession of marijuana, as well as recent administration policy developments on the federal level.”

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 President Joe Biden’s marijuana pardons, showing the geographic and demographic breakdown of those who are eligible for relief.

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