The United States Sentencing Commission has opened the door to a new approach to cannabis in the country’s federal courts system.
In its Sentencing Guidelines for United States Courts to be published in the Federal Register this week for public comment, the USCC includes within a section on “Criminal History” a “proposed amendment” and “issues for comment” related to “marihuana.” At its core, the amendment seeks to limit how much weight personal possession carries in sentencing considerations.
This proposed change comes on the heels of President Joe Biden’s historic announcement in October that he would pardon federal simple possession offenses. In January, the USSC published a report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System, in which it notes Biden’s announcement and that “federal policy regarding marijuana possession appears to be shifting.”
Biden also called for the Attorney General and the Secretary of Health and Human Services to “review expeditiously how marijuana is scheduled under federal law.” Today, cannabis is in Schedule I of the Controlled Substances Act, the strictest schedule, which means that even a first possession conviction could lead to up to one year in prison. Meanwhile, nearly half of the states in the country have legalized cannabis for adults.
In its synopsis of the proposed amendment, the USCC references this report’s findings. While federal possession sentences have fallen over time, to 145 in FY 2021, possession records affect future sentences. In 2021, the report found, 4,405 people facing federal charges received “criminal history points” for past possession, which “resulted in a higher Criminal History Category” for 1,765 of them.
As such, the amendment seeks to “provide that a downward departure may be warranted 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.” A downward departure, in short, is when a judge imposes a sentence below the minimum set out in the guidelines.
The USCC also put forth two “issues for comment” related to the amendment. The first simply asks whether it should “provide additional guidance” with regard to how best to decide “whether a downward departure is warranted.”
The second ask—“comment on whether there is an alternative approach it should consider for addressing sentences for possession of marihuana”—is more noteworthy because it considers cannabis law reform unfolding at the state level and opens the door for going even further.
“For example,” it continues, “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?”
Public comment will be accepted until March 14, and the USCC might also hold a hearing.