Few topics have been more distorted by politicians and media than claims about the criminal justice system in its various forms. When the offense involves illicit drugs (use, possession, or trafficking), the distortion becomes pronounced.
In large measure, a complicated set of data have been made even more difficult to grasp because of tendentious (and often false) assertions forwarded by drug legalization advocates, who seek to advance their own “reforms” by first misrepresenting the criminal justice facts. Moreover, though drug use overall is subject to confusion, distortion is even greater when marijuana is the drug in question.
An example of agendas distorting understanding is the effort to blame drug laws for the growth in incarceration. That effort seeks to convince a public otherwise disinclined to accept more drugs that current drug laws have created the supposed injustice of “mass incarceration.” This is demonstrably untrue.
To answer with the facts, we will address several distinct dimensions of legal institutions concerning illicit drugs: prison sentences, recidivism of released prisoners, and the relationship of drug use to the commission of criminal acts. (We addressed the parallel issue of drug arrests in a previous study, showing that they are far fewer in proportion to drug use than drug reform advocates claim.)
We start with prison inmates, found in both state and federal prisons, and contrast the cumulative numbers of those imprisoned with those entering in a single year. In all cases, we will find that the proportion of drug offenses to the overall number of prisoners has been much overstated. Cumulatively, all drug offenders in both systems constitute 20 percent of inmates (303,800 out of 1,508,636 sentenced inmates).
THE FEDERAL PRISON SYSTEM:
The federal system holds 13 percent of all prisoners, but contains the larger proportion of drug offenders. This happens because many trafficking offenses, be they interstate or international, are specifically federal in nature. But even as the total number of prisoners has grown, the drug-offender percentage has declined steadily.
There were 52,568 federal prisoners in 1989 (those “under jurisdiction”), and by 2014, there were 191,374 (those “sentenced” – the categories shifted slightly over time, yielding slight variation in respective calculations). Yet the percentage of drug offenders in the total peaked in 1996, when it stood at 59.6 percent.
A 2014 publication from the White House showing the cumulative total of federal prisoners broken down to show drug offenses as the most serious charge, reveals that the proportion of drug offenders had dropped to 44 percent of all offenders in 2011. By 2014, the most recent data on sentenced drug offenders in the federal prison system shifted back to 50 percent of all federal inmates, an increase from the previous ratio due largely to recent inmate releases.
When we turn to inmates entering federal prison in a single year, data are more current, but show the same trajectory. In 1998, the proportion of drug offenders incarcerated for that year was 41 percent (vs. 57.8 percent of the 1998 cumulative “jurisdiction” figure).
By 2014, according to the United States Sentencing Commission (USSC), drug offenders (of all types) had fallen to only 32 percent (of 75,836 entering federal inmates, 22,193 were drug offenders). Importantly, 96.6 percent of entering inmates who were drug offenders were convicted of trafficking offenses, while only 0.9 percent were convicted of simple possession.
We can further break these data down by drug type, and by nature of the drug offense. Methamphetamine resulted in the largest subset of drug types with more than 6,304 incarcerations, while heroin produced 2,431.
Though recent legislative reforms have altered the mandatory sentencing guidelines regarding powder cocaine offenses (based on weight) compared to crack offenses (a former ratio of 100 to 1 has been amended to 18 to 1), there were only 4,959 powder cocaine convictions in 2014, compared to 2,439 crack convictions. Moreover, the number of crack cocaine inmates sentenced for simple possession was 0.3 percent, or no more than 7 people.
Finally, marijuana federal incarcerations totaled only 3,971. Marijuana offenses are overwhelmingly (97.6 percent) for trafficking, with a “simple possession offense” representing only 75 individuals (or 1.9 percent), with that conviction often resulting from downward plea-bargaining from more serious offenses.
To show the emphasis on traffickers, when asked in Congressional testimony how many drug possession offenders the Drug Enforcement Administration (DEA) refers for federal prosecution, Acting Deputy Administrator Jack Riley stated, “virtually none.”
What, then, is currently driving the changing distribution of the federal inmate population? To a large extent it is a rising number of immigration offenses, according to a study by the Congressional Research Service. This fact is echoed for single-year entry for prisoners as well: in 2014 the USSC shows 29 percent were immigration offenders, while 32 percent were drug offenders.
THE STATE PRISON SYSTEM:
The state prison system is larger, holding 1,317,262 sentenced prisoners cumulatively in 2014. The state prison inmate population has also grown over time, and the absolute number of drug offenders within that total has nearly doubled since 1989 from 120,100 to 208,000 (sentenced) in 2014.
Yet just as with the federal system, the percentage of drug offenders has declined since the peak year 1990 when it stood at at 22 percent. For 2014, those whose most serious offense involved drugs were only 16 percent of sentenced state prison inmates (drug possession offenses are only 3.6 percent of all state inmates).
While there has been a marked increase in the state prison population over the past few decades as America has gotten more serious about combatting crime, the data do not support the idea that drug offenses are the primary driver of those increases. Further, with regard to the current push to decriminalize or legalize drug use, there is no support for the assertion that convictions for drug use/possession are responsible for the sharp increases in either state or federal prison inmates.
SENTENCING REFORM AND RECIDIVISM:
And what of sentencing reforms leading to the release of large numbers of federal drug offenders? A substantial problem is recidivism, or re-offending within a relatively short period of time, as we have elsewhere recently argued.
Yet the press persists in misrepresentation. According to the Economist, advocating for prisoner release, “Given how high America’s incarceration rate is, it is fair to say reducing it won’t precipitate a crime wave. Many convicts serving long sentences were never generally dangerous, or have mellowed with age, and no longer pose a threat to the public.”
But the data show otherwise. According to a Bureau of Justice Statistics study of prisoners released in 2005 and tracked for five years, 32 percent were drug offenders. Of these, fully 77 percent of those released re-offended within that five- year-period (57 percent of all offenders re-offended at only one year).
It is worth noting two features of a further breakdown of the 404,638 released prisoners in the study. First, the outcome is the same regardless of the type of drug offense (trafficking or possession); that is, either type of offense has comparable re-offense rates. Drug possession offenders had 78 percent recidivism, drug trafficking offenders, 75 percent.
Second, the percent of re-offenses where the subsequent crime specifically involved drugs reached 51 percent. More compelling, violent crimes were fully 25 percent of drug inmates’ recidivating offenses.
These data clearly show if drug offenders are released through sentencing reform, both drug and violent crime will follow; to the extent that they are released early, the effect is to compress their criminal impact into a shorter period.
Further, inmates’ prior arrest history matters. In this study, for all offenders, the mean number of prior arrests per released prisoner was nearly 11.
For those who had ten or more prior arrests, 86 percent re-offended within 5 years. (Even for those aged 40 and over, the recidivism for drug offenders was 71 percent.)
DRUG USE AND THE COMMISSION OF CRIMES:
Finally, there is the role of drugs in the commission of crime. According to another Bureau of Justice Statistics study, one third of state inmates and one quarter of federal inmates committed their offenses under the influence of illicit drugs. That holds for all crimes, not just drug offenses.
For state prisoners, 69 percent used drugs “regularly,” and for 59 percent, that drug was marijuana (with 30 percent using cocaine/crack).
For federal prisoners, 64 percent used drugs “regularly,” with 53 percent using marijuana (and 28 percent using cocaine/crack). Even for federal trafficking offenders, 34 percent were using drugs at the time of the offense.
The same pattern holds for violent offenders. Of them, 49 percent of both federal and state offenders used drugs in the month prior to the offense. The number using drugs at the time of the violent offense reached 28 percent of state and 24 percent of federal prisoners. Homicide-specific rates of drug use in the month prior to the offense were 49 percent and 45 percent, respectively for state and federal prison inmates, with a respective 27 percent and 17 percent using at the time of the homicide.
By these data, we may conclude the following:
1. Sentencing reforms that result in the early release of prison inmates will increase the number of future crimes, and crime victims, through recidivism, while the effect will be concentrated in time, thereby stressing law enforcement and rehabilitation services.
2. Drug intoxication (including the most prevalent drug, marijuana), is deeply implicated in crime commission, including violent crime. It follows that enabling greater drug use will magnify the criminal impact, with the corollary that efforts to reduce drug use prevalence should help lower the incidence of crime.
3. In particular, decriminalizing or legalizing marijuana will have virtually no impact on prison overcrowding, but the attendant increase in drug-use prevalence nationwide will likely lead to increased commission of crimes, including non-drug offenses and violent offenses.