The Federal Sentencing Commission Proposes New Marijuana Sentencing Guidelines for Judges that Would Be More Lenient Towards Prior Convictions.

A public meeting of the federal U.S. Sentencing Commission (USSC) was held on Thursday, and members voted to propose an amendment to alter sentencing guidelines suggesting that judges treat prior marijuana possession convictions more leniently.

Existing federal sentencing guidelines instruct federal courts to consider prior convictions as aggravating factors, including state-level cannabis charges. However, as more states have taken steps to legalise marijuana, activists have campaigned for updated criteria to ensure that a person’s marijuana record does not add criminal history points that could result in harsher sentences.

This new USSC proposal isn’t trying to get marijuana convictions taken out of the equation entirely, but it would change the guidelines’ commentary to “include sentences resulting from the possession of marihuana offences as an example of when a downward departure from the defendant’s criminal history may be warranted.”

When federal courts hand down sentences that are lighter than the mandatory minimum required under the current standards, this is known as a “downward departure.” The amendment would essentially codify the idea that cases involving mere cannabis possession, “without an intent to sell or distribute it to another person,” should be subject to leniency in sentencing.

Here’s the Proposed Commentary Language on Cannabis Possession for The Sentencing Guidelines:

Any of the following may qualify as a reason to move the defendant down a criminal history category:

Sentences for possession of marihuana for personal use, without intent to sell or distribute, can count toward a person’s criminal history, as was the case with the defendant in this case (ii).

Specifically, the commission wants to know “whether there is an alternate way it should examine for handling sentencing for possession of marihuana.” For instance, USSC is interested in hearing opinions on whether or not to remove a conviction for cannabis possession from a person’s criminal record if that conviction occurred in a jurisdiction that has since decriminalised marijuana.



The commission will make a decision on whether or not to approve the proposed amendment once the public comment session concludes on March 14.

There is no mention of cannabis in the existing rules’ commentary for downward departures. If “the defendant has two minor misdemeanour convictions close to 10 years prior to the instant offence and no other evidence of prior criminal behaviour in the intervening period,” then the USSC may reduce the defendant’s sentencing classification.

Possession of small amounts of marijuana for personal use could be added to the list of relevant examples if the new amendment is approved by the body later this year.

It is recommended that courts consider a defendant’s criminal record when imposing a sentence. There are six tiers of criminal history, with increasingly harsh punishments associated with higher tiers.

USSC Detailed What It’s Looking for In Public comment on the cannabis sentencing proposal:

If the defendant’s criminal record includes points for possessing marijuana for personal use without the intent to sell or distribute it to another person, then they may be eligible for a downward departure under Part C of the proposed amendment.

The Commission is looking for feedback on whether or not it should issue additional advice to help determine if a downward deviation is appropriate in such situations. What new rules or regulations should the Commission put in place if any?

Second, the Commission would like to hear your thoughts on whether there is a different way it could go about handling punishments for possession of marihuana. If the offence is no longer punishable by criminal penalties in the jurisdiction where the defendant was convicted at the time of sentencing for the instant offence, for instance, should the Commission exclude such sentences from the criminal history score calculation instead of granting a departure?

On the other hand, “should the Commission exclude all sentences for possession of marihuana offences from the criminal history score calculation, regardless of whether such offences 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 offence?”

This open forum takes place just days after the US Sentencing Commission (USSC) released a report revealing that hundreds of people in federal prison in the last fiscal year were given longer terms of incarceration due to prior convictions for cannabis possession in states that have since enacted reforms to their marijuana laws.

While the number of federal marijuana possession cases has dropped significantly since 2014 due to the implementation of additional state legalisation legislation, the research underlined the long-term effects of cannabis convictions in terms of a federal sentence.

The commission’s report was established in response to “the patchwork of state laws governing simple possession of marijuana, as well as recent administration policy decisions at the federal level,” as stated by USSC Chairman Judge Carlton Reeves at Thursday’s meeting.

In October, the USSC said that it was considering amending its rules to modify the weight that prior convictions for marijuana possession should have in the Criminal History Category (CHC) when determining a defendant’s sentence.

Two thousand and seventy-two people were charged with federal marijuana possession in FY2014. According to the most recent report from the commission, that number fell to 145 during the most recent fiscal year. In addition, over the past five fiscal years, the average penalty for possession cases was five months in prison, with 70% of offenders receiving this punishment.

The findings of the USSC are in line with other recent federal data showing a declining trend in marijuana cases, such as a recent revelation that cannabis seizures by Customs and Border Protection (CBP) hit a historic low in Fiscal Year 2022, down by roughly 95% over the previous decade.

As more states have legalised marijuana, federal marijuana trafficking prosecutions have decreased, according to a report released by the commission last year.

USSC issued a comprehensive analysis of the effect of President Joe Biden’s marijuana pardons in October, detailing the distribution of eligible individuals across geography and demographics.

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