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Marijuana Arrest and Incarceration in the United States

by Chuck Thomas

There were more than 700,000 marijuana arrest in the United States in 1997. (1) This was the largest number in U.S. history. Of these arrests, 87% were for possession rather than sale or manufacture. The percentage of possession arrests has been at least 80% for more than a decade, and it has been rising throughout the 1990s. (2) The total number of annual marijuana arrests, having dipped in the 1980s, has been rising sharply since 1992.

It is often asserted that these arrests rarely lead to any substantial penalty, and that therefore the costs of the current high-arrest policy, both to those arrested and to the correctional system, are modest. Some recent figures from the Justice Department's Bureau of Justice Statistics (BJS) cast doubt on that assertion.

Calculations based on recent BJS reports suggest that, at any one time, 59,300 prisoners charged with or convicted of violating marijuana laws (3.3% of the total incarcerated population) are behind bars, at a total cost to taxpayers of some $ 1.2 billion per year. They almost 12% of the total federal prison population and about 2.7% of the state population. Of the people incarcerated in federal and state prison and in local jails, 37,500 were charged with marijuana offences only and an additional 21,800 with both marijuana offences and other controlled-substance offences. Of the marijuana-only offenders, 15,400 are incarcerated for possession, not trafficking.

The Estimates: State and Federal Prisons

The BJS report provides data from the 1997 Survey of Inmates in State and Federal Correctional Facilities. (3) According to the report, 12.9% of the drug prisoners in state and 18.9% of those in federal prison were incarcerated for marijuana/hashish offences. The report uses the numbers 216,254 and 55,069 as the total numbers of state and federal inmates, respectively, for all drug offences. Using these numbers, the total number of people incarcerated for marijuana offences would be 27,900 in state prison and 10,400 in federal prison, for a total of 38,300 marijuana prisoners.

However, this estimate of the number of marijuana prisoners is too low, as it is based on an estimate total number of all prisoners which the BJS report notes is an underestimate.

The BJS report's estimates of the total number of drug prisoner's 20.7% and 62.6% of the total estimated state and federal inmate populations, respectively. But the report notes that its estimated 1,046,705 state inmates and 88,018 federal inmates represent undercounts. Excluded from the BJS estimate of federal inmates were unsentenced inmates and those prisoners under federal jurisdiction but housed in state and private contract facilities. Those prisoners who were under state jurisdiction, yet held in local jails or private facilities, were excluded from the estimated number of state prisoners. (3)

An even newer BJS report provides accurate prisoner counts as of 30 June 1998--a total of 1,102,653 state prisoners and 107,381 federal prisoners. (4) In the Survey of Inmates, marijuana prisoners composed 2.7% of the state prison population and 11.8% of the federal population. Assuming that the proportions of drug prisoners to all prisoners—and of marijuana prisoners to all drug prisoner--was the same in the total prison population in June 1998 as in the population subject to the Survey of Inmates, there would be 29,800 marijuana prisoners presently incarcerated in state prisons and 12,700 marijuana prisoners presently incarcerated in the federal prison system, for a total of 45,500 marijuana prisoners.

This number is surprisingly high; the only recent published estimate, in a report by the Marijuana Policy Project issued in November 1998, put the figure at 29,300. (5)

Additional data obtained from a BJS official distinguish between offences involving "marijuana only" and "marijuana and other drugs" (usually cocaine/crack). (6) According to the 1997 BJS prisoner surveys, 16,435 state prisoners and 8,150 federal prisoners were incarcerated for "marijuana only" offences. Adjusting for the June 30, 1998 prisoner counts yields estimates of 17,600 state prisoners and 10,000 federal prisoners incarcerated for offences involving only marijuana, for a total of 27,600 "marijuana only" prisoners.

BJS officials also estimated that 42% of state "marijuana only" prisoners and 23% of federal "marijuana only" prisoners were incarcerated for possession, not "trafficking." (6) ("Trafficking" includes "possession with intent to distribute.") Applied to the previously calculated estimates, as adjusted for the June 1998 prisoner counts, there would be 7,400 state prisoners and 2,300 federal prisoners incarcerated for marijuana possession only, for a total of 9,700 prisoners.

Local Jails

As opposed to prisons, which primarily hold persons convicted and sentenced to a year or more, jails generally hold persons awaiting trial or sentenced to less than a year. As of June 30, 1998, there were a total of 592,462 local jail inmates in the United States. (6) An estimated 22% were incarcerated for drug law violations in 1996. (7) Assuming that the same percentage applied in 1998, this amounts to 130,300 people in jail for violating drug laws. Assuming that the percentage of drug offenders in jail incarcerated for marijuana offences is 12.9% (the same as the percentage of drug offenders incarcerated for marijuana offences in state prison), there would be 16,800 people in jail for marijuana offences. Assuming that 59% of those offenders were "marijuana only" offenders (the same percentage as in state prison), there would be 9,900 people in jail for marijuana only.

Both assumptions are very conservative: the proportions of people in jail for marijuana offences, and for "marijuana only" offences, are probably greater than those proportions among state prison inmates, because the penalties for marijuana offences, compared to other drug offences, are more likely to fall in the lower (jail) range rather than in the higher (prison) range.

Finally, an estimated 58% of drug law violators in jail are locked up for possession, not trafficking. (7) Assuming that the same percentage applies to "marijuana only" offences, there would be 5,700 people in jail for possessing only marijuana.

Total and Costs

Adding the jail and prison estimates gives a total of 59,300 people incarcerated for marijuana offences. Using the adjusted estimates for "marijuana only" gives a jail-plus-prison total of 37,500 people incarcerated for marijuana without any other drugs involved. (To be even more precise, this figure ought to be adjusted to reflect the fact that the "lead charge" reflected in the Survey of Inmates may not be the only, or even the primary, reason a person is in prison; the data does not tell us whether this adjustment would, on balance, be up or down.) Finally, using the adjusted estimates for possession gives a jail-plus-prison total of 15,400 people incarcerated for possessing only marijuana.

At an average annual cost per prison-year of more than $20,000, (8) the total cost to taxpayers of marijuana-related incarceration reaches more than $ 1.2 billion per year. (This does not include the cost of investigating, arresting, and prosecuting the hundreds of thousands of marijuana users arrested every year. )


The benefits of marijuana prohibition and its enforcement have long been the subject of debate. The example, a National Academy of Sciences report recently concluded that "there is little evidence that decriminalization of marijuana use necessarily leads to a substantial increase in marijuana use." (9) However one judges the merits of that debate, the latest figures cast serious doubt on the argument that marijuana incarceration costs are low enough to be ignored.


(1) Crime in the United States: 1997, FBI Division of Uniform Crime Reports; Washington, D.C.: U.S. Government Printing Office, 1998; pages 221-222.

(2) Data print-outs from FBI Division of Uniform Crime Reports (e.g., "Estimated Drug Abuse Violations Arrests, 1979-1993") and Crime in the United States volumes published in 1975-1979 and 1992-1998.

(3) "Substance Abuse and Treatment, State and Federal Prisoners, 1997, " Bureau of Justice Statistics; December 1998.

(4) "Prison and Jail Inmates at Midyear 1998, " Bureau of Justice Statistics; March 1999.

(5) "Marijuana Arrests and Incarceration in the United States: Preliminary Report," Marijuana Policy Project; November 1998.

(6) Unpublished data from the 1997 Survey of Inmates in State Correctional Facilities and the 1997 Survey of Inmates in Federal Correctional Facilities, conducted by the Bureau of Justice Statistics, from June through October, 1997.

(7) "Profile of Jail Inmates, 1996, "Bureau of Justice Statistics; April 1998.

(8) The 1997 Corrections Yearbook, Criminal Justice Institute; September 1997.

(9) "Marijuana and Medicine: Assessing the Science Base, "Institute of Medicine; Washington, D.C.: National Academy Press, 1999; page 3.26 (prepublication copy).

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