The findings in the second and third columns of Table 2 show that this is indeed the case, as people living in so-called decriminalized states are statistically less likely to report jail as the maximum penalty and more likely to report fines and/or probation as the maximum penalty. However, the actual magnitude of these differences is extremely modest and nearly 30% of people living in a so-called decriminalized state still report jail as the maximum penalty imposed. One explanation for this small difference in reported penalties is that we have misclassified people based on decriminalization status, as several other states have also eliminated jail time for possession offences . So, in the second part of Table 2 we show differences in the fraction of the state population reporting specific penalties for states in which the jail times have been removed as a penalty and those that do not. Again we find that individuals living in states that have statutorily removed jail sentences as penalties for possession of up to an ounce of marijuana are statistically less likely to report jail as the maximum penalty and more likely to report fines as the maximum penalty. However, again we see that the actual difference in knowledge across states is small. Two other explanations, which are not mutually exclusive, remain for these findings. First, they may simply reflect citizen ignorance or misperception of actual differences in laws and their enforcement. Second,commercial plant racks they may indicate that laws and enforcement practices differ less than is widely assumed. Relevant evidence pertaining to the first plausible explanation comes from Johnston, O’Malley, and Bachman’s report on decriminalization in the 1970s.
Using the Monitoring the Future survey of high school seniors, they reported ratings for the Classes of 1976, 1977, 1978, 1979, and 1980 on the item “Which best describes the law IN YOUR STATE regarding marijuana? Possession in private of an ounce or less of marijuana is…” In Table 3, we summarize their results for the high school classes of 1976 and 1980. Although the MTF sample includes only high school students where the NSDUH analysis included adults and youth, there are some striking similarities across the tables. For example, perceptions of penalties in non-decriminalized states are remarkably similar, with roughly a third of high school seniors reporting that marijuana possession resulted in jail time and another 30% reporting that they just did not know the state’s policy . These are consistent with those presented in Table 2 using the NSDUH data. The differences across tables are even more striking, however. It appears that in the U.S. in the 1970s, many high school seniors were aware of their state’s marijuana laws, as those living in decriminalized states generally reported that jail was not a probable penalty by 1980 regardless of when the policy passed. In the early decriminalization adoption states, only 14% to 16% of citizens believed marijuana possession carried a possible jail sentence. In the late decriminalization adoption states the proportion of citizens holding this belief dropped precipitously, from 58% in 1976 to 18% by 1980. As Johnston and colleagues summarized their results: “In sum, we can say from the data just reviewed that there were substantial shifts in the perceptions of prevailing laws, but also that there were sizeable segments of the population in all three types of states who either did not know what the law was, or who very likely had an incorrect perception of what it was.”
Overall, these results suggest that more people were aware of their state penalties in 1980 than today. Why? One possibility is that it is the publicity surrounding a change in law, rather than the law’s actual enforcement, that produces differences in citizen perceptions by state . Another possibility, again not mutually exclusive, is that there has been erosion over time in what may have been, in the 1970s, a real policy change. The number of marijuana possession arrests in the United States more than doubled between 1992 and 1998, accounting for 38 percent of all drug arrests by 1998 . Over the same period the National Household Survey on Drug Abuse shows that the prevalence of marijuana use in the general population rose very slightly from 7.9% in 1992 to 8.6% in 1998 . Critics of US policies argue that the enormous increase in marijuana possession arrests is the result of a law enforcement crackdown on non-violent drug offenders . Such a claim seems to be substantiated by the fact that of the 1,579,466 drug arrests in the US in 2000, 5.6% were for marijuana sales or cultivation and 40.9% were for simple possession . However, as reported previously, several U.S. states adopted so-called decriminalization policies in the mid-1970s and several other states have eliminated the criminal status of marijuana since. Hence, if these statutory changes in law did indeed reflect a real policy change that was truly enforced by law enforcement, one would not expect marijuana possession arrests to be as high in states decriminalizing possession of marijuana than those that did not. Further, we would not expect arrests to have risen as much in decriminalized states.
We examine the association between marijuana possession arrests and state statutory policy by linking statutory penalty data from our legal analysis of state statutes over the years 1991 through 2000 to arrest data collected by the Federal Bureau of Investigation’s Uniform Crime Report . The UCR system provides information on the number of crimes reported to the police in specific crime categories each year for every police jurisdiction in the United States. Arrests are also reported by criminal offence. Data is collected on a monthly basis from approximately 17,000 law enforcement agencies and jurisdictions, although the crime and arrest data are not always complete from every agency. Each year, the Intra-university Consortium of Political and Social Research generates county-level arrest and crime estimates from the incomplete agency data collected by the Federal Bureau of Investigation and makes these data available to the public. While the shortcomings of these data are well documented , they remain the only source of geographically disaggregated crime and arrest data in the United States. The biggest limitation of the UCR arrest data is that they only report the arrest for the most serious crime committed. Hence, the data cannot be used to identify the total number of individuals arrested for specific charges because not all charges are reported in the data.However, the data remain useful for analyses such as these where the interest is cases where the most serious offence was marijuana possession. ICPSR imputes most of the missing information at an agency level, which causes a significant time lag in when the data get released. Hence, our analysis here only examines data from 1991 through 2000. Further, a 1994 change in the imputation procedure makes time-series analyses using the ICPSR imputed data before and after this change took affect unwise. Because we were interested in examining changes in marijuana possession arrests throughout the 1990s we developed our own method for imputing missing information.For those counties where imputation was necessary,ebb and flow tray we identified a within-state county that had approximately the same population and used that county’s arrest information as the imputed value for the county with poor coverage.We then summed all county-level arrests to generate state-level arrest rates for marijuana possession offences in each state from 1991 through 2000.Table 4 reports the per capita marijuana possession arrest rates for each state for select years during the 1991 – 2000 time period. It also shows the percent change in per capita arrest rates during selected years. States that have statutorily lowered the criminal status of marijuana possession offences involving small amounts of marijuana to a non-criminal offence are indicated with yellow shading.The states shaded in gray are those commonly recognized as having adopted a decriminalization policy, but whose statutes still retain possession offences as a misdemeanor offence. There are a number of things to note from Table 4. First, by examining the last row, one can see that there was a 264.4% increase in marijuana possession arrests across all states and that the vast majority of this increase occurred between 1991 and 1995. Second, in 1991 there was not a huge amount of variation in the number of arrests per capita.
Although there were some states with relatively low arrest rates and those with relatively high rates , the difference in arrest rates per capita between the highest and lowest state was only slightly larger than 30 arrests per capita. If we look at arrest rates in 2000, we see that the level of arrests across states has gotten substantially larger. Now the difference between the state with the lowest arrest rate and that with the highest arrest rate is four times what it was in 1991, or 120 arrests per 10,000 people. A particularly important feature of Table 4 is that states that have eliminated the criminal status of possession offences involving amounts of one ounce or less of marijuana do NOT have systematically lower arrests per capita than those states retaining the criminal status. Indeed, several of the states, including New York and Louisiana, have larger per capita arrest rates in most years than the national average across states. Further, the increases in arrest rates during the 1991-1995 time period and the 1991-2000 time period is substantially larger than the national average for many of these states. This is further demonstrated in Figure 1, where arrests in states without criminal charges for marijuana possession amounts are graphed against the average total arrests for all states. Here it is easier to see that more than half of the states that do not consider small marijuana possession offences a criminal offence still have per capita arrest rates greater than the national average and they still experience a significant increase in arrests during the 1992-1995 time period. There are at least two alternative interpretations of these data. First, it may be the case that the UCR marijuana possession arrest data do not generally reflect individuals in possession of small amounts of marijuana. If this is indeed the case, then these may not be the appropriate data for evaluating this sort of small policy difference across states. However, such an interpretation also implies that the rise in arrests during the 1990s does not reflect a crackdown on people caught in possession of only small amounts of marijuana. A second interpretation of these data is that the enforcement of marijuana laws today is not highly correlated with the criminal status of marijuana possession offences. States that have removed the criminal status of marijuana or adopted a widely recognized decriminalization policy during the 1970s do not have systematically lower rates of arrest and they experienced increases in possession arrests at rates comparable to that of the other states, with some significantly higher and some significantly lower . This paper provides important insights regarding the range of marijuana depenalization policies that can be observed in Western countries and provides a framework in which policy analysts and makers should consider and compare specific policies. Decriminalization, which literally means an elimination of the criminal status of minor marijuana possession offences, is but one form of depenalization. The ubiquitous application of the term “decriminalization” to describe these forms has, however, obscured from the debate and analysis meaningful policy differences that exist across countries both in the laws and their enforcement. Although numerous Western countries have adopted policies that reduce the penalties associated with minor marijuana possession offences, the extent to which criminal charges are removed, reduced penalties apply to all offenders, and “minor” is precisely defined varies substantially from country to country as well as within jurisdictions in the same country, as we showed for Germany and the United States. Further, the extent to which those enforcing the laws influence the interpretation and implementation of these policies is largely unknown for most countries and cannot always be interpreted from official statistics on arrests. Without a careful understanding of these nuances within each country and how they differ across countries, it is unclear what can be gained from analyses attempting to evaluate the impact of them.