Blog Layout

LPP Urges USSC To Exclude Prior Cannabis Possession Offenses from Criminal History Scores

Stephen Post • July 24, 2024

Read our full comment with citations here.


United States Sentencing Commission

One Columbus Circle, N.E., Suite 2-500

Washington, D.C. 20002

Attn: Public Affairs – Priorities Comment


Dear United States Sentencing Commissioners,


The Last Prisoner Project (“LPP”) submits the following comments to the United States Sentencing Commission (“the Commission” or “USSC) in response to the Commission’s request for comment on possible policy priorities for the 2024-2025 amendment cycle. LPP commends the Commission for taking steps to better reflect the current legal and policy landscape surrounding cannabis activity in the United States, and specifically the recent amendment #821 C, which allows for a downward departure to a criminal history score for a prior cannabis possession conviction. We would like to take this opportunity to urge the Commission to further amend the sentencing guidelines to exclude prior cannabis possession offenses from criminal history scores entirely, so that they are not used to increase criminal sentences for subsequent offenses.


We also want to thank the Commission for clarifying via Amendment #814 that retroactive changes to law can be considered as extraordinary and compelling factors for a sentence reduction motion under section 3582(c)(1)(A) in the case of an “unusually long sentence”. Given the widespread and significant changes to the legality and public perception of cannabis, we would, however, ask that the Commission not limit the use of a retroactive change in law to individuals serving at least ten years of imprisonment.


We also would like to address the Commission’s oversight of drug sentencing and the Drug Quantity and Drug Conversion Tables (hereinafter, the Tables). Specifically, we urge the Commission to conduct a complete review and revision of the Tables.


Sentencing Guidelines Should Reflect Current Notions of Criminality


In your 2023 publication “Weighing the Impact of Simple Possession of Marijuana” the Commission noted the shifting sentiment towards cannabis at both the state and federal level and the Commission again noted these changes in law when promulgating amendment #821 Part C. Today, 24 states and the District of Columbia have fully legalized cannabis for adult-use while only three states have no public cannabis access program.1 These state-legal marketplaces generate billions of dollars not just in sales, but also in tax revenue for these jurisdictions, all while cannabis remains federally illegal and the criminal status of cannabis continues to lead to hundreds of thousands of arrests each year.


Now, the federal government is poised to reclassify cannabis–following the Health and HumanServices Department’s recommendation in late 2023, the Drug Enforcement Administration (DEA) recently announced its decision to reschedule cannabis to Schedule III. This move demonstrates the federal government’s shifting policy approach to cannabis as a less harmful substance with medicinal benefits.


In conjunction with prospective changes to cannabis laws, local, state and federal political leaders are increasingly taking concrete action to mitigate the past harms caused by decades of cannabis prohibition. In October of 2022, President Biden pardoned all federal simple marijuana possession offenses and formally encouraged state governors to do the same, an action he expanded upon in late 2023.5 Officials have followed suit, as evidenced by former Oregon Governor Kate Brown pardoning over 45,000 individuals with marijuana convictions and Connecticut Governor Ned Lamont announcing the automatic clearing of over 44,000 cannabis records. City officials in places like New Orleans and Birmingham have also taken steps to pardon municipal marijuana possession offenses.8 These actions signify that, beyond the shifting legal landscape for cannabis use, public perception of cannabis has also changed. The vast majority of Americans, including the sitting President, no longer feel that cannabis use is something that should be criminalized. We have changed our approach to criminalizing cannabis, and thus, the US Sentencing Guidelines must be adjusted to reflect this current climate. Continuing to punish individuals for an activity that is legal for a majority of Americans does not comport with our country’s shared values of justice and fairness. It is only fitting that any marijuana offense, including but not

limited to simple possession, should be eliminated from consideration as a factor in calculating

an individual’s criminal history score for sentencing purposes.


Removing Marijuana Offenses from Criminal History Scores will Result in More Equitable

Sentencing


When one considers the well-documented racial disparities found in the enforcement of cannabis laws, it is clear that excluding marijuana offenses from criminal history scores will also result in a more equitable approach to sentencing.


In 2013, a report from the American Civil Liberties Union found that, despite virtually indistinguishable rates of cannabis consumption amongst racial groups, Black residents of the United States were 3.73 times as likely to be arrested for marijuana possession than their white counterparts. A 2020 follow-up to the ACLU report found that, despite several states legalizing or decriminalizing cannabis, these racial disparities remained essentially unchanged. Data indicates that these racial disparities appear to persist in conviction rates and sentencing. As sentencing guidelines are meant to be considered objectively and reflect an accurate prediction of an individual's criminality, removing marijuana convictions from individuals’ criminal history scores would be a step toward creating a more equitable sentencing process. In addition, excluding marijuana convictions from consideration altogether is also in line with the current administration’s position on the criminality of cannabis use. As President Biden stated, “sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit.”13 If permanently enacted, this proposed amendment would help alleviate, or at the very least not further exacerbate, the racial disparities in our criminal legal system.


It’s also worth noting that the availability of avenues through which individuals can clear marijuana possession offenses from their records is highly dependent on the jurisdiction in which the offense took place. As noted above, many executive offices (whether it be the president, state governors, or mayors) have pardoned all simple marijuana possession offenses. In some jurisdictions, like Oregon, that pardon results in automatic record clearance. However, in most jurisdictions, pardoned offenses still appear on an individual’s criminal record, perpetuating barriers to employment, housing, and educational opportunities (to name just a few of the

collateral consequences accompanying even a low-level marijuana conviction).


Although several states have established methods for individuals to expunge or remove previous marijuana-related convictions, disparities still exist among those who can access this relief successfully. Clearing one's record can be overwhelming, especially for individuals lacking a legal background, technical knowledge, or easy access to criminal records and court filings. Eligible individuals with language barriers or illiteracy also struggle to clear their records. Consequently, race and socioeconomic status often determine who can overcome these difficulties and access record clearing and expungement. Unfortunately, most eligible individuals do not complete these record-clearing processes.


This disparity in accessing record-clearing mechanisms for marijuana offenses is yet another inequality present in the Commission’s current guidelines, which include marijuana possession offenses in criminal history scores. It’s unfair that those who, for the reasons named above, could not clear their records successfully are subject to harsher sentencing ranges.


A Marijuana Conviction is Not a Valid Predictor of Future Criminality


The US Sentencing Guidelines Manual states that a “defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” The manual goes on to note that because “[r]epeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation,” an individual’s criminal history must be considered during the sentencing phase “[t]o protect the public from further crimes of the…defendant.”


In the case of a simple marijuana possession offense, however, there is little correlation between cannabis use and criminality. According to a national study of recidivism, individuals convicted of drug offenses have significantly lower recidivism rates than those convicted of violent or property-related crimes. Additionally, a 2020 report authored by the Commission found that individuals convicted of marijuana-related offenses have one of the lowest rates of recidivism when compared to other drug offenses. In one of the few available studies on recidivism rates for individuals where drug possession (as opposed to trafficking) was their primary offense, the rate of recidivism was incredibly low as compared to national averages.


In short, as there is no evidence that marijuana possession convictions are valid predictors of

future criminal behavior (and thus do not endanger public safety), they should be excluded from

individuals’ criminal history score calculations.


Changes to Laws and Attitudes Surrounding Cannabis Also Warrant an Amendment to the Commission’s Compassionate Release Policy Statement


In promulgating Amendment #814 the Commission described the circumstances in which an intervening change in the law can qualify as an extraordinary and compelling factor warranting compassionate release. The Commission clarified that such changes to the law may be considered if an applicant otherwise meets the factors warranting a sentence reduction or that such a change on its own could constitute an extraordinary and compelling factor if the case involves an “unusually long sentence” and the applicant has served at least ten years of a term of imprisonment.


As the Commission noted in its Amendment: “One of the expressed purposes of section 3582(c)(1)(A) when it was enacted in 1984 was to provide a narrow avenue for judicial relief from unusually long sentences. Having abolished parole in the interest of certainty in sentencing, Congress recognized the need for such judicial authority.” Thus, compassionate release serves a critical function in providing relief where it is clear that the length of a term of imprisonment does not comport with modern laws and attitudes surrounding the criminal activity at hand.


As described above, we now face a situation where thousands of federal prisoners remainincarcerated for activity that has been broadly legalized at the state level and that many are now profiting from. Our federal government has now also changed its stance on the dangerousness of cannabis and has acknowledged that cannabis has medicinal benefits. Given these circumstances, an individual serving a nine-year sentence for a controlling cannabis offense can credibly argue that their sentence is “unusually long” for the offense they are sentenced under. While cannabis may represent the offense that has seen the most pronounced change to its legal status in recent history, it is an all too common occurrence in American history that our beliefs, sentiments, and even scientific consensus evolve faster than our laws and their associated criminal penalties. As the remaining mechanism for relief for federal prisoners incarcerated under unjust laws, the compassionate release factors should be applied broadly enough not to exclude individuals whose sentences are unjust and excessive, but may not meet the ten year requirement, even if no other compassionate release factors apply.


Changes to Drug Laws More Broadly Warrant a Reevaluation of the Drug Quantity and Drug Conversion Tables


While over fifty years of ongoing political and educational messaging demonizing drug use and

stigmatizing drug users has failed to realize a drug-free world, the underlying racial and social motivations have succeeded. Since its inception, the drug war has been overwhelmingly enforced in BIPOC communities, especially low-income ones, causing the country’s inflated prison population to be disproportionately comprised of Black, Latino, and Indigenous people. It has led to lengthy terms of imprisonment for relatively low-level offenses and for those with little to no criminal history, which perpetuates cycles of trauma and violence. The same conditions have fueled and perpetuated violence internationally and in inner-city neighborhoods nationwide, and have led to increases in concentration, adulteration, and toxicity of the substances themselves.


An increasingly multi-partisan coalition is calling for change. In 2017, the USSC published a report describing, in part, how drug-related mandatory minimum penalties have been "applied more broadly than Congress may have anticipated.” Such non-discretionary sentencing fails to promote public health. Instead, it has the effect of incarcerating people for longer amounts of time than the evidence shows deters further criminal activity.


While reversing and mending the harms of the war on drugs will take effort from people across the government and political spectrum, one way to shift policy in a more humane direction–and in alignment with contemporary evidence–is to go to one of the current roots of the problem: drug sentencing. The Drug Quantity and Drug Conversion Tables, set by the USSC, are used as a benchmark for federal drug sentencing and are often referenced or relied on in state sentencing decisions. Bringing these Tables into alignment with modern research about drug risks and harms would lead to more accuracy in sentencing decisions, which would both alleviate some of the socioeconomic harms of the drug war and save public funds, without risking public safety.


Given that the Tables presently translate quantities of various illegal drugs into their marijuana-equivalent quantities for the purpose of determining relative harm, it would be appropriate to utilize the multi-agency review already happening with cannabis to review and update the tables. Additional research about other historically stigmatized substances should also inform this review. The Food and Drug Administration (FDA) granted a breakthrough therapy designation to MDMA-assisted therapy in 2017, and again granted two breakthrough therapy designations for psilocybin in treatment-resistant depression in 2018 and major depressive disorder in 2019. In 2024, the FDA extended the same status to an LSD formula for the treatment of generalized anxiety disorder. The FDA is also reviewing a new drug application for MDMA-assisted therapy, for which they will likely have a decision by August 2024.


Meanwhile, there has been growing bipartisan support to fund clinical trials exploring the use of psychedelics to treat traumatic brain injuries, depression, military sexual trauma, and post-traumatic stress disorder in veterans. For instance, in the 2024 National Defense Authorization Act, the Department of Defense authorized funding a study on psychedelics for the treatment of PTSD in military members. In March 2024, the Department of Veterans Affairs passed a budget allocating $20 million for clinical trials for MDMA and psilocybin. The National Institutes of Health has also opened funding opportunities for studying psychedelic-assisted therapy for chronic pain in older adults. This shift in the evidence base, and concurrent changes in federal policy, reflects an increasing willingness and mandate to reevaluate long-held assumptions about controlled substances, paving the way for more drug policies driven by data rather than dogma.


Alongside the evidence and government agencies, recent polls have found an overwhelming majority of American voters are also eager for a new approach to drug laws and responses to drug-related offenses. Over 60% support ending the War on Drugs; “eliminating criminal penalties for drug possession and reinvesting drug enforcement resources into treatment and addiction services”; repealing mandatory minimum sentences for drug crimes; and commuting, or reducing, the sentences of people incarcerated for drugs. Representing one of “the few truly bipartisan issues in American politics,” the “breadth and depth of support for change suggests that there are few issues for which the nation’s laws so misrepresent the preferences of the American people as for drugs.”


Despite these widespread calls for evidence-based policies and new approaches for regulating controlled substances, the Tables remain based on outdated medical, scientific, and sociological information. Not only do they recommend disproportionately severe penalties, they have no basis in the actual risks posed by each substance, the realities of the illicit drug market, criminal culpability, or other public safety factors. Congress and this Commission have already acknowledged that the Tables have resulted in outrageous sentencing disparities for otherwise similar behaviors, at least in the context of crack versus powder cocaine. For the Tables to be more in line with the Controlled Substances Act’s stated process for regulation, there is a serious need for the USSC to re-evaluate sentences based on “current scientific knowledge regarding the drug or other substance,” potentially positive “pharmacological effect[s],”42 and likelihood of misuse and dependence.


Any inquiry should take into account ways harm reduction approaches, public education, and proven methods of avoiding harm and use among minors can reduce the likelihood of misuses and dependence. Revising the Tables would likely lead to a reduction in resources spent on enforcement, prosecution, and punishment. Those resources could then be reinvested to bolster effective harm reduction and public education efforts.


Last Prisoner Project and countless other organizations across the political spectrum and around the country are coming together to organize and inform the USSC and the general public about the importance of this issue. The United States is long overdue for sentencing reform, and the urgency lies especially with drug-related offenses. As a complete review and revision of the Tables will likely require the USSC to conduct a multi-year study, the Commission must take an important first step to initiate such an inquiry now.


Conclusion


Like all components of criminal sentencing, criminal history score calculations should be proportionate to the offense and no greater than necessary to further the goal of public safety. Additionally, sentencing guidelines should be equitable and structured in a way that works to reduce racial disparities. By removing prior cannabis offenses from criminal history scores and allowing for changes to cannabis laws to be used as the sole basis for an extraordinary and compelling justification for release under 3582(c)(1)(A) the Commission can better achieve its goals of sentencing policies that align with fairness and justice.


In addition, we encourage the Commission to commit to conducting a reevaluation of the drug quantity and drug conversion tables more broadly given the available scientific and medical data.


We appreciate the opportunity to comment on this request and thank the Commission for its time and consideration.

By Stephen Post March 11, 2025
The Last Prisoner Project (LPP) has submitted a formal comment to the U.S. Sentencing Commission (USSC), advocating for critical changes to federal drug sentencing guidelines and supervised release policies. LPP’s recommendations aim to reduce overly punitive sentencing practices, promote rehabilitation, and improve public safety. Reforming Supervised Release LPP supports proposed amendments granting courts greater discretion in imposing and modifying supervised release. Overly rigid supervision can create unnecessary barriers to successful reintegration, increasing the likelihood of recidivism. Key recommendations include: Individualized assessments : Courts should tailor supervised release terms to the specific needs of each individual. Elimination of unnecessary supervision : LPP urges the removal of mandatory supervised release requirements when not explicitly required by statute. Early termination of supervision : Encouraging courts to assess whether continued supervision is necessary after one year, reducing unnecessary burdens on individuals and the justice system. Reducing Drug Sentences LPP also calls for major reforms to the Drug Quantity Table, advocating for reductions in base offense levels across all substances, with additional reductions for cannabis and psychedelics due to their increasing medical recognition and evolving legal status. Lowering the highest base offense level to 30 (or lower) : Research consistently shows long prison sentences do not improve public safety and can actually increase recidivism. Proportional reductions across all drug types : Harsh sentencing has not been an effective deterrent, and a more balanced approach is needed. Additional reductions for cannabis and psychedelics : Given their lower risk profiles and medical potential, sentences for these substances should be significantly reduced. Addressing Low-Level Drug Offenses LPP supports a six-level sentence reduction for individuals convicted of low-level trafficking roles. Many involved in minor drug-related offenses are individuals with limited economic opportunities, and excessive sentences do little to address the root causes of their involvement. Retroactive Application of Sentencing Reforms Currently, approximately 63,000 people are serving federal sentences for drug-related offenses, many under outdated guidelines. LPP urges the Commission to apply any sentencing reductions retroactively, allowing individuals already incarcerated to benefit from these long-overdue reforms. LPP commends the USSC for considering these reforms and urges them to take bold action. By implementing these changes, the Commission can help reduce mass incarceration, promote fairness, and allocate resources toward more effective public safety strategies.
By Stephen Post March 4, 2025
Claudio Martinez Jr. is reunited with his family after serving 11 years in prison of an over 21-year nonviolent cannabis sentence. Today, the Last Prisoner Project (LPP) celebrates a hard-fought victory as Claudio Martinez Jr. is finally reunited with his family after 11 years of incarceration for a nonviolent cannabis offense. Claudio’s release comes as a result of a clemency petition filed by Last Prisoner Project and granted by President Biden, marking a long-overdue step toward justice for a father who has spent over a decade behind bars for a conviction that no longer reflects the values of our society. Claudio was sentenced in 2016 to over 21 years (262 months) in federal prison, despite his offense being solely cannabis-related. His story reflects the devastating impact of outdated drug laws that have torn families apart for far too long. Today, that chapter closes as Claudio walks free and embraces his four children— Jasmine (pictured below), Emilio, Eric, and Eli—who have waited over a decade for this moment. His eldest daughter, who tragically passed away in 2018, will be deeply missed in this reunion, a reminder of the many years lost to excessive sentencing.
By Stephen Post February 26, 2025
Wednesday, February 26th (Washington D.C.) - Despite significant progress in cannabis legalization at the state level, tens of thousands of people remain incarcerated for cannabis-related offenses, licensed cannabis businesses are struggling, and community uplift funds are stalled. With 24 states and Washington D.C. legalizing adult-use cannabis and the federal government cannabis’s reclassification process in limbo, the fight for full legalization and retroactive relief is more urgent than ever. To mobilize the 70% of the public that supports legalization into political pressure, the Cannabis Unity Coalition , the largest bipartisan coalition of cannabis advocacy, industry, and grassroots organizations, is mobilizing for the Cannabis Unity Week of Action , taking place April 28th - May 1st, 2025, in Washington, D.C. This multi-day event will unite advocates, impacted individuals, and industry leaders to pressure Congress and the Trump administration to fully legalize cannabis and implement retroactive relief measures for those affected by prohibition-era policies. The week will start on Monday with the National Cannabis Festival’s Policy Summit at the MLK Library to educate attendees on the policies currently before Congress. Tuesday will begin with a congressional press conference in the morning followed by a welcome ceremony in the U.S. Capitol Visitor Center starting at 2pm. Wednesday will be dedicated to our Lobby Day where attendees will meet with their elected officials on Capitol Hill to advocate for cannabis reform. Lastly, events will conclude Thursday evening with an action outside the White House to honor those still incarcerated for cannabis and demand their freedom via presidential clemency. The Cannabis Unity Coalition is made up of a broad array of advocate groups that span across political boundaries and includes members of the Marijuana Justice Coalition (MJC) like Drug Policy Alliance (DPA), National Organization for the Reform of Marijuana Laws (NORML), Veterans Cannabis Coalition, and Parabola Center; members of the Cannabis Freedom Alliance (CFA) like the Reason Foundation and Law Enforcement Action Partnership (LEAP); Students for Sensible Drug Policy (SSDP), which is a member of both coalitions; and industry groups like National Cannabis Festival, National Craft Cannabis Coalition, National Cannabis Industry Association (NCIA), Minority Cannabis Business Association (MCBA), Indigenous Cannabis Industry Association (ICIA), Asian Cannabis Roundtable, and National Association of Black Cannabis Lawyers (NABCL), FreedomGrow, Marijuana Justice, Doctors for Drug Policy Reform, United Food and Commercial Workers (UFCW) , Supernova Women, Minorities for Medical Marijuana, Midwest Cannawomen, DCMJ, Just Leadership USA (JLUSA), National Association of Criminal Defense Lawyers, and Marijuana Policy Project (MPP). For 2025, in addition to Mission Green, other organizations that have joined us for this year include the Balanced Veterans Network, Latinas in Cannabis, the Equity Trade Network, Cannademix, and Free My Weed Man. “It’s beyond time to legalize cannabis nationwide and expunge records for those incarcerated for cannabis-related offenses,” said Congresswoman Ilhan Omar (MN-05) , newly elected co-chair of the Congressional Cannabis Caucus. "I’m incredibly grateful for the partnership of the members of the Cannabis Unity Coalition and look forward to working together to get this done." Eric Goepel of the Veterans Cannabis Coalition said "Considering the staggering rates of chronic and infectious disease, suicide, and overdose in the US, especially among veterans, we need every tool at our disposable. Cannabis and cannabinoids have immense potential to revolutionize medicine and reduce harm, but that can only be fully achieved through marijuana descheduling, smart legalization, and research funding. We look forward to centering the needs of patients and consumers as part of Unity Week and working with allies to bring critical information to Congress." “As a career law enforcement official, I’ve witnessed firsthand the failed policies of the War on Drugs and the waste of police time and resources that have followed,” said Lieutenant Diane Goldstein (Ret.), Executive Director of the Law Enforcement Action Partnership. “It’s time to end marijuana prohibition once and for all, so that we can free up law enforcement to focus on the biggest threats to public safety, instead of low-level arrests and enforcement that only damage community relations and make it harder for us to do our jobs.” “Cannabis prohibition has destroyed lives, torn families apart, and fueled mass incarceration. Ending it is not just about policy—it’s about justice. We must fully repeal prohibition, expunge records, and free those still behind bars,” said Weldon Angelos, Founder of The Weldon Project & Mission Green, who also had previously been pardoned by President Trump for his cannabis conviction. “It is not enough to simply treat the symptoms of bad cannabis policy; we must fix the problem at its root cause. We can start by stopping arrests today, by releasing all cannabis prisoners and removing the significant barriers to their successful reintegration into our society, and by ending marijuana prohibition once and for all,” said Kat Murti, Executive Director, Students for Sensible Drug Policy (SSDP). “Young people have always been some of the biggest casualties of the War on Drugs. The War on Drugs is a War on Us and we will no longer stand by passively and allow it to be fought in our name.” Sarah Gersten, Executive Director of Last Prisoner Project said, "Cannabis prohibition has devastated countless lives and disproportionately impacted communities of color. We must ensure that justice for those still incarcerated for cannabis-related offenses is part of legalization. Cannabis Unity Week represents a powerful opportunity to unite advocates, industry leaders, and impacted families to demand comprehensive reform, including retroactive relief and clemency.” As more organizations join our fight, individuals interested in attending Cannabis Unity Week can sign up for updates here . Additionally, you can join one of our information sessions on March 5th and April 2nd at 6:30pm EST, sign up here to attend . Those who can’t join us in D.C. can still participate virtually by contacting your federal representatives to #DecriminalizeNow, urging your governor to grant clemency to those in your state, and following along through livestream. Learn more and take action at LPP.la/CannabisUnityWeek . Press contact: Stephen Post LPP Communications Manager stephen@lastprisonerproejct.org
Share by: