Marijuana Sentencing Guidelines

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As with any public policy, there are both costs and benefits to current policies with respect to drugs such as marijuana, cocaine, heroin, LSD, and PCP. Benefits are presumed to include a reduction in the use of such drugs, with such concomitant benefits as improved health of U.S. citizens, more productive work, and less crime, though the last claim is particularly controversial. Costs include a loss of individual liberty, public expenditures for enforcement and incarceration, lost work effort by those incarcerated, and an increase in crime because of black‐​market activities.

Weighing most of these costs and benefits is not within the scope of the Commission’s authority. That task is the responsibility of Congress and the state legislatures, who would do well to consider the wisdom of spending $15 billion a year to enforce a policy that arguably increases both property crime and violent crime. But the Commission can consider the direct costs of incarceration as a result of its sentencing guidelines.

In 1987 the Commission substantially increased the penalties for marijuana possession, with little investigation of what past practice had been or what the results in terms of drug prices and crime might be. It seems clear that rising penalties, while they may deter some drug use, also increase the price of illegal drugs, thus leading to more black‐​market crime. It would be valuable for the Commission to analyze the relationship between drug prices and murder rates in our major cities. Such an analysis might lead the Commission to question the benefits of increased penalties and stepped‐​up enforcement.

However, the question before the Commission today is a narrow one: Should the marijuana sentencing guidelines be changed to treat each marijuana plant as the equivalent of 100 grams of marijuana rather than 1000 grams, thus reducing the sentencing range for those convicted of offenses involving 100 or more marijuana plants?

I would suggest first that 100 grams is in fact a much better estimate of the yield of a marijuana plant than 1000 grams, so the proposed change simply makes sense.

Second, I would suggest that there are definite benefits for American taxpayers in making this change. It costs $20,804 to keep a prisoner in jail for a year. (That figure does not include construction costs.) By my calculations there were approximately 784 people convicted of marijuana offenses in 1992 for whom the minimum of the guideline range was higher than the applicable mandatory minimum. The cost of keeping those 784 people in prison for one year was $16,310,000. If we estimate that they would average four additional years in prison based on the current guidelines, the taxpayers would be paying more than $65 million in additional costs for those prisoners.

There are other costs to consider. Each prisoner displaces another potential prisoner. Would we be better served by keeping violent criminals in prison longer by freeing up beds now used by marijuana offenders? The average violent criminal commits 40 robberies, 7 assaults, 110 burglaries, and 25 auto thefts in a year. If we had space to keep 784 more violent criminals in prison for a year, we could avoid 31,000 robberies, 5,000 assaults, 19,600 auto thefts, and 86,000 burglaries.

Another cost is the productive work not done by people in prison. Not only does it cost society $20,804 to keep each offender in prison, GNP is reduced by the amount that he would have earned in that year. Let’s assume that the average marijuana offender would earn not the median income but only 75 percent of the median income of American men. That means our GNP is reduced by $12.1 million for each additional year that 784 offenders are incarcerated.

The change proposed here is small, and the benefits are small compared with the $15 billion a year that America spends to enforce its drug laws. But $28 million a year in incarceration costs plus lost output is still a cost worth considering, and I urge you to determine that it clearly exceeds whatever benefits the additional prison time may be supposed to produce. Thank you.


From Sentencing Comm. memo
1393 marijuana cases convicted under mandatory minimums In 56.3% of cases (784), the minimum of the guideline range was higher than the applicable mandatory minimum

784 x $20,804 (annual prison costs) = $16,310,336

Average four years extra for each — calculated from FAMM matrix

Median income for American man (1992, Statistical Abstract) = $20,654 (21,605 for men 25–34) x .75 = 15,490.50x784 = 12,144,552.

31,360 robberies by 784 violent criminals
5,488 assaults
86,240 burglaries
19,600 auto thefts