One major myth about prisons is that they are packed with nonviolent offenders whose only crime is marijuana possession. As I have written editorials about Kansas state prisons recently, this has been the top concern of readers contacting me. But this myth is not reality. 

Criminal justice reform is rightfully getting significant attention. And opinions around marijuana are changing, even in Kansas. In the 2018 FOX News/AP voter analysis survey, 62 percent of Kansas voters believed that marijuana use should “be legal nationwide.”

For a public that is increasingly aware of our prison problems and that is less puritanical than our lawmakers on marijuana, this myth is temptingly simple: solve overcrowding in Kansas prisons by stopping this outrage of imprisoning people for possessing weed.

However, the Kansas Department of Corrections reports that in fiscal year 2019 only 20 percent of inmates in state prisons were guilty of a drug violation as their most serious offense. Forty-eight percent were listed under non-sex “other person” offenses and 23 percent under sex-related person offenses. That drug share has been stable over time. In 2000, only 20 percent of Kansas offenders had a drug violation as their most serious offense.

Caveats: the report did not disclose the nature of those drug offenses, or what drugs were involved. Nor did it disclose whether offenders with more serious offenses also had drug convictions or how drugs related to parole violations.

National statistics suggest that few of those drug offenders are likely imprisoned for marijuana possession. Various experts and federal agencies estimate that only 0.5 to 1.5 percent of inmates in state prisons are imprisoned for marijuana possession alone. Most inmates with marijuana convictions are guilty of growing or distribution, and most have additional and more serious non-marijuana offenses.

At the federal level, which is generally more focused on drug enforcement than states, only 4 percent of the nearly 20,000 drug cases reported to the U.S. Sentencing Commission in 2018 involved possession. The rest were largely manufacturing and trafficking. And only 12 percent of those cases involved marijuana.

So, it’s a stretch to argue that marijuana possession drives overcrowding in Kansas prisons, or that legalizing marijuana will eliminate mass incarceration. Though as Attorney General Derek Schmidt noted in an August editorial, Kansas does imprison some offenders for drug possession. But, possession here can mean any drug, and more likely means repeated offenses for meth, cocaine, or heroin than marijuana.

Nonetheless, serious policy questions involving marijuana do exist. Dismissed possession charges or convictions that do not result in prison remain on criminal records. This can complicate finding employment and cause heavier sentences for convictions on other crimes. 

Studies show that while whites and minorities use marijuana at similar rates, marijuana possession arrests are substantially higher among minorities. Thus, the consequences of having a record because of marijuana fall disproportionately on minorities.

Also, local jails are separate from state prisons. Local jail conditions, bail reform, and how marijuana factors into that is a separate but important topic.

Criminal justice reform is moving ahead in Kansas. But if citizens are to judge our lawmakers on those reforms, then we must get our facts right. Kansas has many legitimate policy questions regarding marijuana, but — bluntly — imprisoning non-violent offenders in state prisons for mere possession does not top that list.

 

Patrick R. Miller is an Associate Professor of Political Science at the University of Kansas.

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