Rethinking the Consequences of Decriminalizing Marijuana

Rethinking the Consequences of Decriminalizing Marijuana

• The Decriminalization Movement​
• Impact of Decriminalization on Marijuana Use
• Impact of Decriminalization on Crime
• Marijuana's Impact on Arrests and Court Processing
• Marijuana's Impact on the Correctional System
• Estimating the Impact of Decriminalization on Government Expenditures
• Summary
• Endnotes

<table border="0" cellpadding="0" cellspacing="0" width="100%"> <tbody><tr> <td valign="top"> </td> <td align="right" valign="top"></td></tr> <tr> <td valign="top">By James Austin, Ph.D.
The JFA Institute
5 Walter Houp Court, NE
Washington, DC 20002 </td> <td align="right"> <table border="1" bordercolor="#cccc99" cellpadding="6" cellspacing="0" width="140"> <tbody><tr> <td align="left" height="20"> Help Fund this Report
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The Decriminalization Movement

The past three decades have witnessed a stormy and controversial debate about the possible merits to society that might be brought about by decriminalizing or legalizing marijuana. Beginning in 1973 with Oregon, 12 states (Alaska, California, Colorado, Maine, Minnesota, Mississippi, New York, Nebraska, Nevada, North Carolina, Ohio, and Oregon) have in some manner altered their existing laws to reduce the penalties for marijuana possession.1 A number of local cities have also modified their local ordinances and criminal justice practices to decriminalize pot (Berkeley, Oakland and San Francisco, California; Breckenridge, Colorado; Amherst, Massachusetts; Madison and Milwaukee, Wisconsin; Urbana and Carbondale, Illinois; and Colombia, Missouri; among others).

There are three central arguments supportive of the decriminalization movement which have been advanced in these and other jurisdictions. Perhaps the most powerful and appealing argument for marijuana decriminalization (and/or decriminalizing other drugs) is that it would save a huge amount of government money now being spent on the enforcement of such laws. The basic tenets of the cost saving argument can be summarized as follows:

1. The criminal justice system, ranging from police to corrections, now allocates a significant portion of its budgets arresting, prosecuting, sentencing and incarcerating marijuana users, dealers and others involved in the illegal drug infrastructure (e.g., transporters, manufacturers of drug paraphernalia, etc.).

2. If these behaviors would no longer be labeled as criminal, criminal justice agencies would reduce the enforcement and processing tasks now associated with such crimes.

3. There is a direct relationship between the proportion of arrests or cases processed for marijuana crimes by the criminal justice system and the amount of money expended by these same agencies.

4. By reducing or eliminating these marijuana related events, there would be a proportionate decrease in the agency expenses.

This perspective has led to some fairly substantial claims regarding the amount of money to be saved by taxpayers if marijuana were decriminalized. For example, a recent study by Scott Bates (2004) claimed that Alaska was spending $25-30 million per year enforcing marijuana prohibition laws. Further, since there is no link between marijuana use and criminal behavior, there would be no impact on crime. And, if the purchase of marijuana were to be taxed as a legal commodity, tax revenues would increase by about $10-20 million per year. So, voters were promised that a net swing of $35 - $50 million per year would appear in the state's coffers if marijuana were decriminalized.2

Jeffrey A. Miron from MIT made a similar claim in his assessment of drug laws in Massachusetts.3 Applying the same assumptions used by Bates, he estimated that the state would reduce its criminal justice expenditures by $120.6 million per year. The largest savings would be in the courts ($68.5 million), followed by police ($40.3 million) and corrections ($13.6 million). And, Michael Aldrich, Tod Mikuriya, and Gordon Bronwell have claimed that California's pioneering decriminalization law (SB 95) was generating over $30 million per year in reduced police costs.4

On a national level, a recent report by Jon Gettman estimated that national criminal justice expenditures for enforcing marijuana laws is $7.6 billion per year with $3.7 billion being allocated to police, $853 million to the courts, and $3.1 billion to corrections.5 To his credit he noted that his estimates were “maximum” costs recognizing that actual costs and savings may be significantly lower. Similarly, the 2005 report by the Sentencing Project states that $2.1 billion is being spent by police on enforcing marijuana laws.6

All of these studies use a proportionate cost model. This approach was adopted by the Office of Drug Control Policy (ONDCP) on the Economic Costs of Drug Abuse.7 This report totaled all of the criminal justice costs as well the major activities, events and/or people processed by the criminal justice system. Next, the proportionate numbers of activities or persons that could be related to marijuana crimes (possession and sales) were totaled. The costs associated with these events or persons were based on their proportionate size to the total criminal justice events or persons. This report did not separately analyze marijuana related costs but did claim that the nation was spending $12.1 billion in police and court costs and another $16.9 billion in corrections costs.

In making such estimates for marijuana crime, the methodology would work as follows. If the number of arrests for marijuana in a given jurisdiction reflects 10% of the total arrests, it is argued that the legalization or decriminalization of marijuana would produce a 10% drop or savings in the total law enforcement costs. The primary problem with these estimates is that while they accurately reflect the proportionate level of costs they are not useful in estimating the savings to be realized if marijuana sales and possession were no longer criminalized. In fact, this somewhat simplistic and static cost benefit model generates highly misleading and exaggerated cost savings claims because it fails to recognize that government agency budgets are relatively fixed and operate independent of the level of activities or events (arrests, prosecutions, and sentencing) reported by the agency.

Indeed, it will be argued in this paper that decriminalization will have only a marginal impact on criminal justice costs. This is not to say that decriminalization would have a trivial effect on costs or that it should not be aggressively pursued by state and federal policy makers. The major benefit of decriminalization, in addition to eliminating the needless arrest, prosecution, and court disposition of over 700,000 people each year, would be the ability of the criminal justice system to focus on more important public safety activities.

Finally, the author would like to acknowledge that there are may other “prohibition costs” that are not covered by this report. These are “costs” incurred by marijuana users such as civil forfeiture, driver license suspensions, drug tax stamp violations, loss of access to federal student loans, removal or suspension from public housing, loss of welfare payments, denial of employment opportunities with government and private agencies, loss of professional licenses and the costs of mandatory drug treatment.

Impact of Decriminalization on Marijuana Use

One concern is that decriminalization will result in greater use of the drug. If true, there could be associated increases in the non-criminal justice costs associated with medical, mental health and even losses in worker productivity as access to and use of the drug rises. One would be hard pressed to suggest that decriminalization would result in a decrease in use, but what is the evidence that decriminalization would result in a significant increase in use?

First it must be emphasized that marijuana, despite its criminalization, is widely used by a large proportion of the US population. The most recent national survey conducted by the US Government reported that 25.8 million people or nearly one out of ten US residents use marijuana at least once a year and over 6% of the population uses the drug on a monthly basis. The lifetime use estimate of marijuana is a hefty 95 million, meaning that 47% of all adults have tried marijuana at least once.8

Unlike alcohol and tobacco use which follows more of a daily pattern, marijuana smoking follows more of an occasional use pattern (once a week or once a month). The demographics of the user population show that it matches the US population with respect to race but that users are disproportionately younger males which also suggests the use of the drug reflects more of youthful experimentation pattern rather than an enduring or long-term life pattern of steady use. The point is that since marijuana is at best a low risk to addiction and that most “users” wean themselves off the drug, its unlikely that making it more available would have a significant increase on these well-established use patterns.

If one looks at selected studies of jurisdictions that have decriminalized the drug, the evidence is either no increase or a slight increase among those segments most likely to use the drug. A study by Rosalie Pacula, Jamie Chriqui, and Janna King9 examined several states where marijuana had been decriminalized by reducing the penalties for simple possession. They found that living in a decriminalized state increases use among high school students but by only 2%. Other studies have found either no increases among juveniles or as much as 4% increase.

Impact of Decriminalization on Crime

Another area of concern is that decriminalization will lead to an increase in crime and thus increase the need for criminal justice resources to combat growing crime rates. This view is based on what some have referred to as correctional analysis. It begins with the well known fact that a high proportion of the 7 million plus persons under the control of the adult correctional system (jail, probation, parole and prison) have recently used an illegal drug. The logic of the “drug use causes crime” argument is that since so many “offenders” have used illegal drugs than it must be the cause of criminal behavior. One could also argue that the consumption of milk is a cause of crime since all criminals have consumed milk – some just before they committed the crime.

The problem with this premise is that there are many other factors associated with criminal behavior that are also associated with drug use. These other demographic factors (e.g., age, gender, etc) and socio-economic factors are more powerful causal factors of criminality. As such drug use, either because it predates criminal behavior or is more associated with the lifestyle of lower socio-economic male life-styles, may simply represent a spurious relationship with crime.

On the narrower question of marijuana, there is little evidence of a direct link between marijuana use and criminal behavior. Marijuana is neither a gateway drug (smoking marijuana necessarily leads to the use of more serious drugs like cocaine and heroin) nor one that necessarily propels one to criminal activity with the obvious exceptions of either possession or distribution of the drug. As noted earlier, over 25 million people consume marijuana each year with nearly 15 million using the drug in the past month. By way of comparison, very small percentages of Americans (under 4 % in total) have used cocaine, crack, heroin or other inhalants in the past 30 days.10 So somewhere along the line, the vast majority of the marijuana drug users do not graduate to the more dangerous drugs.

David Boyum and Mark Kleiman in their review of drug control policies note that of three major illicit drugs (marijuana, cocaine, and heroin), marijuana is the least likely to generate criminal activities. This is due to the method of dealing (discreet), amount of drug required to get high (small), the fact that high itself is highly unlikely to trigger violence, and because social circles surrounding marijuana are largely white and from the middle and upper socio economic classes. They conclude that:

“ Making marijuana legally available to adults on more or less the same terms as alcohol would tend to reduce crime…”11

Finally, a proponent of the marijuana use equals crime premise would have to explain why although marijuana use has been increasing at a modest but steady rate since the early 1990s, the crime rate has plummeted. If there was a marijuana-crime link, one would have expected crime rates to increase and not decline.

Marijuana's Impact on Arrests and Court Processing

Despite the large swell of legislative activity at both the state and local level, the number of persons arrested for marijuana possession and sale has grown significantly. In 1970 there was an estimated 188,682 arrests for the drug – by 2003 the number had increased to 755,000. So it's clear that despite the decriminalization effort, the chances of a marijuana user being arrested have significantly increased.

Although a large and increasing number of persons are arrested each year for marijuana violations, as a proportion of total number of criminal justice arrest and felony court convictions, marijuana cases are relatively low percentages of police and court's workload. For example, In 2003 there were 13.6 million arrests made by police agencies meaning that marijuana arrests represent about 5-6% of the total arrests (see Table 1). This also means that based on the large number of marijuana users (nearly 26 million) the probability of a marijuana user actually being arrested is even lower. Gettman calculates the overall arrest rate per 100,000 population at 250 which is twice the rate it was in the early 1970s, but remains relatively low compared to the overall arrest rate for all crimes (in 2001 it was 4,800 per 100,000 population).

These data show that marijuana and marijuana possession is a relatively small piece of the arrest pie (about 4 %). Eliminating the marijuana arrest pool would have only a marginal effect on the universe of arrests and the workload of the police.

The same can be said about the impact on the courts. There are an estimated one million felony convictions by state and federal courts. Of this number only 69,500 convictions were for marijuana violations of which 44,200 are possession convictions. These data do not include the work of the lower or municipal courts where most of police arrests are handled. Obviously the remaining 600,000 plus marijuana arrests must be handled by some court agency. For example, in California of the 1.2 million adult arrests, over half (801,506) are misdemeanor level crimes of which 100,000 are drug violations -- all of which are processed through the Municipal Courts. Unfortunately, there are no national estimates of municipal or lower criminal court activity. But one can assume that marijuana cases do not constitute a major portion of the lower court's dockets.

Table 1
Marijuana Use and Arrests, and Convictions per Year
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<table border="1" bordercolor="#cccc99" cellpadding="2" cellspacing="0" width="100%"> <tbody><tr bgcolor="#cccc99"> <td>Item</td> <td>

N​

</td> <td>

%​

</td></tr> <tr> <td>Persons Using Marijuana Per Year</td> <td align="center">25,700,000</td> <td align="center"> </td></tr> <tr> <td>Total Arrests – All Crimes</td> <td align="center">13,699, 254</td> <td align="center">100%</td></tr> <tr> <td>Serious Violent Crimes</td> <td align="center">627,132</td> <td align="center">5%</td></tr> <tr> <td>Serious Property Crimes</td> <td align="center">1,618,465</td> <td align="center">12%</td></tr> <tr> <td>All Drugs</td> <td align="center">1,586,902</td> <td align="center">12%</td></tr> <tr> <td>Alcohol Related</td> <td align="center">2,664,111</td> <td align="center">19%</td></tr> <tr> <td>Marijuana Arrests</td> <td align="center">755,187</td> <td align="center">6%</td></tr> <tr> <td>• Marijuana Arrests – Possession</td> <td align="center">613,986</td> <td align="center">4%</td></tr></tbody> </table>

Table 2
Felony Court Convictions

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<table border="1" bordercolor="#cccc99" cellpadding="2" cellspacing="0" width="100%"> <tbody><tr bgcolor="#cccc99"> <td>Item</td> <td>

N​

</td> <td>

%​

</td></tr> <tr> <td>Total State and Federal Convictions</td> <td align="center">983,823</td> <td align="center">100%</td></tr> <tr> <td>Total State </td> <td align="center">924,700</td> <td align="center">94%</td></tr> <tr> <td>• Violent </td> <td align="center">173,200</td> <td align="center">18%</td></tr> <tr> <td>• Property</td> <td align="center">262,000</td> <td align="center">27%</td></tr> <tr> <td>• Weapons</td> <td align="center">28,200</td> <td align="center">3%</td></tr> <tr> <td>• Other</td> <td align="center">141,600</td> <td align="center">14%</td></tr> <tr> <td>• Drugs</td> <td align="center">319,700</td> <td align="center">32%</td></tr> <tr> <td> – Marijuana Court Convictions – Felony</td> <td align="center">69,500</td> <td align="center">7%</td></tr> <tr> <td> • Trafficking</td> <td align="center">25,300</td> <td align="center">3%</td></tr> <tr> <td> • Possession</td> <td align="center">44,200</td> <td align="center">4%</td></tr></tbody> </table>

Table 3 Adult Correctional Populations 2003
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<table border="1" bordercolor="#cccc99" cellpadding="2" cellspacing="0" width="100%"> <tbody><tr bgcolor="#cccc99"> <td>Population</td> <td>

2003​

</td> <td>

%​

</td></tr> <tr> <td>Probation</td> <td align="center">4,073,987</td> <td align="center">58%</td></tr> <tr> <td>Jail</td> <td align="center">691,301</td> <td align="center">10%</td></tr> <tr> <td>Prison</td> <td align="center">1,470,045</td> <td align="center">%</td></tr> <tr> <td>Parole</td> <td align="center">774,588</td> <td align="center">21%</td></tr> <tr> <td>Total Adults Under Supervision</td> <td align="center">7,009,921</td> <td align="center">100%</td></tr> <tr> <td>Adult Population
% of Adults Under Correctional Supervision
</td> <td align="center">209.4 million
3.3%
</td> <td align="center"> </td></tr></tbody> </table>
Part 2

Marijuana's Impact on the Correctional System The remaining portion of the criminal justice system where marijuana may be a significant cost factor is in the corrections system, which includes people in jail and prison or placed on probation or parole. As shown in Table 3, this a very large system that includes over 7 million people on any given day. The difficulty is in establishing the number of persons who are under correctional supervision on any give day or have been touched by the system during a calendar or fiscal year solely due to a marijuana charge. Such data do not exist, making it somewhat speculative in terms of what proportion of the correctional system is allocated to the control, punishment and treatment of marijuana offenders.

It is known that within the state and federal prison systems, there are approximately 250,000 state and another 70,000 federal inmates incarcerated for drug crimes. It is not known what numbers of prisoners are incarcerated solely for marijuana crimes. But if one were to assume that the marijuana cases would reflect the number of persons arrested and convicted for such crimes, one would have to assume that at best no more than 1/5th of the drug convicted and defendants (or about 64,000 prisoners) are marijuana cases. This would represent about 4% of the entire US prisoner population. King and Mauer estimated that 27,900 state and federal prisoners are incarcerated solely for marijuana crimes.12

But even this estimate is probably too high as it does not take into account that persons convicted of marijuana possession or even low level sale of the drug rarely receive prison terms. Once again there are no national data to test this hypothesis, but we can look at California's state correctional data to see how significant the marijuana conviction cases are with respect to the parole and prisoner populations.

Table 4 summarizes the results of analysis made by the author based on detailed data files provided by the California Department of Corrections. This table reports the number of prisoners and parolees who are either incarcerated or are on parole for the crimes of marijuana possession or sale. For both the prisoner and parole populations the numbers of such cases reflect less than 1% of the total.

A somewhat similar analysis was done for Louisiana with somewhat different results. Louisiana, unlike California, is not a marijuana decriminalization state, so it may be that the number of person incarcerated or placed on probation or parole will be higher. It was not possible to separate the marijuana crimes by sale and possession but I was able to include the very large number of persons on probation. Here the numbers of marijuana prisoners are proportionately larger (2.2%) but still reflect a relatively small proportion of the prisoner population. However, the marijuana crime category for the parole and probation populations – especially for the probation populations - is a sizable portion (nearly 10%) of the entire 60,000 plus supervised population. What these data show is that a larger portion of the correctional population of persons convicted solely for marijuana possession or sale are on probation and to a lesser extent parole. But these populations (parole and probation) are also the least expensive forms of corrections.

Another possible impact on prison and jail populations is the number of parolees or probationers who have their parole or probation terms violated for the use or sale of marijuana. Here again the data are somewhat lacking. It is known that 1/3rd of all prison admissions are for parole supervision violations. About half of the parole violations are for technical violations. A few states have been able to point out that at least another 1/3rd of prison admissions are probation violators although there are no data on what percent are technical violators let alone those being violated solely for marijuana use, possession or sale.13

A recent example in the District of Columbia illustrates how the violation of probation or parole based on marijuana use can serve to produce a prolonged period of incarceration. One case involved a young man who was paroled in 2002 after a lengthy prison term for car-jacking. One of his conditions of supervision was to refrain from drug use and to undergo weekly drug testing. After several weeks of his release from prison he began to use marijuana for recreational purposes. He then tested positive on several occasions which resulted in his parole being revoked. There were no other charges or violations brought against him. The parole board revoked his parole which resulted in him being incarcerated first in the DC jail system and later by the Bureau of Prisons for a total of approximately 5 months before being re-released to parole. His case will not show up as a marijuana case in the agency statistic even though his re-incarceration was solely caused by marijuana use.

Table 4
Number of California Prisoners and Parolees Sentenced for Marijuana Crimes
December 2004
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<table border="2" bordercolor="#cccc99" cellpadding="2" cellspacing="0" width="100%"> <tbody><tr bgcolor="#cccc99"> <td> </td> <td colspan="2" align="center">Prisoners</td> <td colspan="2" align="center">Parolees</td></tr> <tr bgcolor="#cccc99"> <td>Attribute</td> <td align="center">N</td> <td align="center">%</td> <td align="center">N</td> <td align="center">%</td></tr> <tr> <td>Total Population</td> <td align="center">149,889</td> <td align="center">100.0%</td> <td align="center">126,578</td> <td align="center">100.0%</td></tr> <tr> <td>Marijuana Crimes</td> <td align="center"> </td> <td align="center"> </td> <td align="center"> </td> <td align="center"> </td></tr> <tr> <td>• Possession</td> <td align="center">29</td> <td align="center">0.0%</td> <td align="center">73</td> <td align="center">0.1%</td></tr> <tr> <td>• Cultivation</td> <td align="center">59</td> <td align="center">0.0%</td> <td align="center">133</td> <td align="center">0.1%</td></tr> <tr> <td>• Transportation for Sale</td> <td align="center">630</td> <td align="center">0.4%</td> <td align="center">1,382</td> <td align="center">1.1%</td></tr> <tr> <td>• Possession with Intent to Sell</td> <td align="center">382</td> <td align="center">0.3%</td> <td align="center">669</td> <td align="center">0.5%</td></tr> <tr> <td>• Total Marijuana Offenders </td> <td align="center">1,100</td> <td align="center">0.7%</td> <td align="center">2,257</td> <td align="center">1.8%</td></tr></tbody> </table>

Table 5
Number of Louisiana Prisoners, Probationers and Parolees Sentenced for Marijuana Crimes – April 2005
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<table border="1" bordercolor="#cccc99" cellpadding="2" cellspacing="0" width="100%"> <tbody><tr bgcolor="#cccc99"> <td> </td> <td colspan="2" align="center">Prisoners</td> <td colspan="2" align="center">Probationers </td> <td colspan="2" align="center">Parolees</td></tr> <tr bgcolor="#cccc99"> <td>Attribute</td> <td align="center">N</td> <td align="center">%</td> <td align="center">N</td> <td align="center">%</td> <td align="center">N</td> <td align="center">%</td></tr> <tr> <td>Total Population</td> <td align="center">37,868</td> <td align="center">100.0%</td> <td align="center">38,231</td> <td align="center">100.0%</td> <td align="center">24,219</td> <td align="center">100.0%</td></tr> <tr> <td>Marijuana Crimes</td> <td align="center">862</td> <td align="center">2.2%</td> <td align="center">3,677</td> <td align="center">9.6%</td> <td align="center">1,312</td> <td align="center">5.4%</td></tr></tbody> </table>

Jail is also a place where there may be additional costs for marijuana crimes. As suggested above, of the 755,000 marijuana arrests, the vast majority will be booked into a jail and will spend some amount of time incarcerated while awaiting the disposition of their cases. For example, the US Department of Justice reports that 80% of all defendants charged with felony drug possession crime are released within one week of their booking into the jail. While the length of stay may be short, the booking process is one of the most expensive and dangerous operations in a jail.14 Elimination of these cases would no doubt have some impact on costs and overall safety of the facility.
​

Estimating the Impact of Decriminalization on Government Expenditures
​

How does one use the above information to determine the cost benefits from decriminalizing marijuana? We know that a large number of persons are arrested each year but that marijuana cases represent a relatively small proportion of the entire universe, and therefore, costs of police and related court processing tasks. Within the correctional system, there appears to be an even smaller number of persons sentenced to prison for marijuana crimes. For probation and parole the numbers seem to vary by state, but it's clear that the largest numbers are going to be probationers. However, the costs of probation supervision are well below the costs of jail or prison. Finally, as illustrated above, there are several ways that marijuana use can lead to incarceration via the violation of supervision process.
​

There is no question that United States is spending large amounts of money on its criminal justice system. The current estimate is that the United States is spending about $167 billion a year to fund its federal, state, and local police, the courts and corrections agencies. In 1982 the costs were only $36 billion thus representing a 165 percent increase (in constant dollars).15 As shown in Figure 1, the largest proportion of these costs support police operations ($50.7 billion) followed state correctional agencies ($38.4 billion). The question to be addressed is; What proportion of these costs can be attributed to marijuana crimes? Or more directly, would these costs be reduced if marijuana were decriminalized?

Figure 1
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<table align="center" border="0" cellpadding="0" cellspacing="0" width="350"> <tbody><tr> <td align="center"> Expenditure for justice functions varies by level of government

In fiscal year 2001 States spent $38.4 billion for corrections. Local governments spent the most for police functions -- $50.7 billion.



</td></tr></tbody> </table>

Source: Bauer, L. and S. Owens (2004). Justice Expenditures and Employment in the United States, 2001. WDC: BJS
​

Understanding Fixed, Dynamic, and Marginal Costs of Criminal Justice Agencies
​

Most cost benefit analyses fail to understand that the vast majority of the criminal justice costs are “fixed” or “static” and do not vary appreciably by the volume of activities, tasks or incidents undertaken by the agencies. This is because most of the agency costs are largely linked to agency personnel costs (salary and fringe benefits) which reflect 70-75% of a criminal justice agency budget and do not vary by marginal changes in workloads. Unless one can demonstrate that these costs vary by the number of persons arrested, prosecuted, defended, convicted, sentenced, supervised and incarcerated, there is little reason to believe that decriminalization of marijuana would have a fiscal impact. Or put differently, payrolls would have to be reduced, prisons closed or court-rooms emptied for real money to be saved.
​

A good analogy would be the airline industry. It costs a certain amount of money to fly a plane and operate the necessary support services (maintenance, flight attendants, pilots, fuel, and booking agents). These are so-called fixed costs that do not vary by the number of passengers that get on the plane. There are so called “marginal” cost savings that are real and need to be accounted for. In the example of airlines, certain non-fixed costs such as meals, beverages, and fuel used based on the plane's passenger manifest and freight load.
​

The analogy can be applied to the business of criminal justice. Most of the previous studies that examine cost savings for decriminalization as well as any other major criminal justice reform rely on assumptions that serve to exaggerate cost savings. These studies and models often assume a direct relationship between fluctuations in events and caseloads and the costs that support public agencies and organizations that process cases and people. For example, if a particular police agency that has 7,500 officers makes 10,000 arrests for marijuana out of a total of 100,000 arrests, decriminalization advocates have argued that the police agency's budget would be reduced by 10%. In reality, the police budget would remain largely the same unless 10% of the 7,500 officers were terminated. The only costs that would be realized could be linked to things like overtime costs.

One could argue that unless decriminalization had occurred, criminal justice costs would have been higher. This falls into the very speculative category of “averting” future costs that have yet to be incurred. There is some merit to this perspective but demonstrating cause and effect is quite problematic.

Furthermore, given the large amount of discretion enjoyed by police and the courts in terms of how resources are deployed, it is quite possible that as the emphasis on one crime is reduced, resources are re-directed to other crimes. Indeed, this is one of the major justifications for decriminalization of marijuana – not so much that it would reduce criminal justice costs. Rather it would allow the criminal justice system to focus on more serious crimes.

To better understand this phenomenon, one needs to examine the example of California's decriminalization reforms in the 1970s. California on two occasions in the 1970s enacted major legislative changes designed to lessen the reach of the criminal justice system on marijuana use. In 1972, then Senator George Duekmejian successfully sponsored legislation that allowed persons charged with minor drug offenses and other misdemeanor crimes to be diverted from future criminal prosecution if they agreed to participate and complete a pretrial diversion program. In 1975, the California legislature enacted Senate Bill 95 which took effect on January 1, 1976 and had the following provisions:

1. No arrest or booking for individuals apprehended in possession of small amounts of marijuana;
2. No jail or incarceration for persons convicted of possession of small amounts of marijuana;
3. Furnishing of small amount of marijuana for no consideration is treated as simple possession, not sale;
4. Transportation of small amounts of marijuana is treated as simple possession, not felony transportation;
5. Elimination of life-long criminal records for marijuana possession arrests and convictions, and placing a two-year limit on the retention of such records and the use of such records against individuals arrested and convicted of specified offenses;
6. Abolition of recidivist penalties for simple possession, giving away and transporting small amounts of marijuana.

Many observers have concluded that the California legislation has been very successful in terms of reducing arrests and saving large amounts of money. Aldrich et al.16, found that after S.B. 95 took effect, the number of marijuana arrests declined from a pre 1976 rate of approximately 100,000 per year to about 25,000 per year. Using a proportionate costs benefit model, the authors concluded that criminal justice expenditures declined by 24 percent from 1974 to 1984 with a culminative savings of $360 million. They conclude that:
“ It is rare that a single legal change has such an immediate and drastic effect on arrests and enforcement costs in a state.”

But what the study did not do was look at the total arrest and expenditure data for the same period. As shown in Table 6 the total number of arrests, police officers and, more importantly, costs have steadily increased over the same time period. There is some suggestion that the number of police dropped in 1976 and remained stable from 1977-1978 which may be attributed to SB 95. What one must consider is whether law enforcement and other criminal justice agencies did not reduce their agency costs, but rather, shifted their increasing resources and costs to other matters and/or relabeled certain behaviors that used to be recorded as a marijuana arrest to some other crime category.

For example, a law enforcement officer often has several choices in terms of labeling the arrestee with a specific charge. In the case of a marijuana arrest it is often the case that other behavior (e.g., reckless driving, trespassing, etc.) triggered the arrest and that marijuana was only later discovered after searching the person. With the advent of SB 95 the same person is arrested but on a non-marijuana charge.

It is conceded that one can not prove the case of “re-labeling” by law enforcement. Nor can it be denied that there has been an impact on marijuana drug arrests. The question is whether the effect has been as great as the advocates of SB 95 claim?

Summary

The debate on whether to decriminalize marijuana remains a hotly debated topic. Unfortunately the debate is rarely informed by data that can be used to help parents, voters and politicians make an informed decision on whether decriminalization will provide substantial savings and not lead to more use and more crime. With respect to the dual questions of decriminalization's impact on use and crime, there seems to be broad consensus based on scientific data that it will have little, if any, impact. Marijuana already is a widely used substance with over 26 million annual users. And despite increases in marijuana use since the early 1990s, the crime rate has plummeted over the same time frame. If there was a marijuana-crime link, it is not having its expected impact on crime.

Whether decriminalization would have a significant impact on the criminal justice system remains an open question. While representing a significant number of arrests (over 750,000) each year, the proportion of marijuana arrests as compared to the total universe of arrests is quite low. Imprisoned persons who are incarcerated only for marijuana are comparatively few. Further, the criminal justice system's capacity to reconstitute itself and actually expand in the face of declining crime rates illustrates just how difficult it is to generate actual savings. One should not be surprised to find that if marijuana were legalized, the net effect to the taxpayer in criminal justice savings would be negligible.

Table 6
California Arrests, Police Officers, and Expenditures
​

<table border="1" bordercolor="#cccc99" cellpadding="2" cellspacing="0" width="100%"> <tbody><tr align="center" bgcolor="#cccc99"> <td valign="bottom">Year</td> <td>Total
Arrests</td> <td>Police
Officers</td> <td>Police
Expenditures</td></tr> <tr align="center"> <td>1972</td> <td>1,340,438</td> <td>58,028</td> <td>$903,534</td></tr> <tr align="center"> <td>1973</td> <td>1,383,234</td> <td>59,697</td> <td>$1,018,333</td></tr> <tr align="center"> <td>1974</td> <td>1,488,102</td> <td>62,020</td> <td>$1,160,710</td></tr> <tr align="center"> <td>1975</td> <td>1,439,857</td> <td>64,177</td> <td>$1,284,178</td></tr> <tr align="center"> <td>Annual Change
1972-1975
</td> <td valign="bottom">+24,855</td> <td valign="bottom">+1,537</td> <td valign="bottom">+$95,161</td></tr> <tr align="center"> <td>1976</td> <td>1,395,447</td> <td>64,060</td> <td>$1,418,008</td></tr> <tr align="center"> <td>1977</td> <td>1,402,930</td> <td>65,971</td> <td>$1,578,641</td></tr> <tr align="center"> <td>1978</td> <td>1,382,805</td> <td>64,928</td> <td>$1,661,488</td></tr> <tr align="center"> <td>1979</td> <td>1,442,037</td> <td>65,120</td> <td>$2,058,821</td></tr> <tr align="center"> <td>1980</td> <td>1,542,850</td> <td>67,321</td> <td>$2,400,827</td></tr> <tr align="center"> <td>1981</td> <td>1,632,351</td> <td>69,420</td> <td>$2,741,479</td></tr> <tr align="center"> <td>1982</td> <td>1,621,944</td> <td>71,352</td> <td>$2,981,519</td></tr> <tr align="center"> <td>1983</td> <td>1,653,914</td> <td>72,618</td> <td>$3,256,388</td></tr> <tr align="center"> <td>1984</td> <td>1,680,721</td> <td>74,536</td> <td>$3,591,614</td></tr> <tr align="center"> <td>Annual Change
1977-1984
</td> <td valign="bottom">34,724</td> <td valign="bottom">1,071</td> <td valign="bottom">$251,622</td></tr></tbody> </table> This is not to say that efforts to decriminalize marijuana should be abandoned. Certainly the nearly three quarter million Americans who are arrested and booked into jail each year see the value of such a policy. There are also many hidden costs associated with marijuana use especially for those nearly 5 million persons on parole and probation supervision who are subject to incarceration if they do what 25 million Americans do on a regular basis – smoke pot.

Finally, while the numbers of persons incarcerated for pot may be low and criminal justice costs associated with marijuana use is not as great as some suggest, it makes no sense from a public policy perspective to add to the workload of an already over-extended criminal justice system. Our money and resources would be better spent on far more pressing social and public safety issues.

There are several studies that claim serious crimes actually increase as police and the courts pay greater attention to drug crimes.17 This perspective simply acknowledges what is obvious to the most common observations of police patrol behavior. Typically when a police officer makes an arrest, it will result in an officer being off the street for several hours in order to complete the arrest report. In my recent study of the Washington DC police department, I found that the average time it took an officer to complete the required paper work was approximately 7.7 hours from the point of arrest.18 During this time the officer's presence to detect and deter other crimes that may be occurring was essentially eliminated.

This is the real benefit of decriminalization. Actual financial savings to taxpayers will only happen if police, probation and parole officers are laid off, and, court rooms and prisons closed. This is unlikely to occur simply due to marijuana being decriminalized. But it may halt the ever increasing and expanding amounts of money being spent on marijuana enforcement and force the criminal justice system to re-allocate its resources to more serious crimes.


Endnotes

1 MacCoun, R and P. Reuter. 2001. Drug War Heresies: Learning from Other Vices, Times, and Places. New York, Cambridge University Press.

2 Bates, Scott. 2004. The Economic Implications of Marijuana Legalization in Alaska. Fairbanks, Alaska: Boreal Economic Research and Analysis,

3 Miron, JA. The Budgetary Implications of Marijuana Legalization in Massachusetts. Report for Changing the Climate. August 2003.

4 Aldrich, Michael, Tod Mikuriya, and Gordon Bronwell. 1986. Savings in California Marijuana Law Enforcement Costs. Berkeley, CA: Medi-Comp Press.

5 Gettman, Jon. 2004. Crimes of Indiscretion: the Nature, Extent, and Costs of Marijuana Arrests in the United States. Washington, DC: National Organization for the Reform of Marijuana Laws.

6 King, Ryan and Marc Mauer. 2005. The War on Marijuana: The Transformation of the War on Drugs in the 1990s. Washington, DC: The Sentencing Project.

7 Office of Drug Control Policy. 2004. The Economic Costs of Drug Abuse in the United States, 1992-2002. Washington, D.C., Executive Office of the President.

8 U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. 2004. National Survey on Drug Use and Health. Ann Arbor, MI: Inter-university Consortium for Political and Social Research.

9 Rosalie Pacula, Jamie Chriqui, and Janna King (2003). Marijuana Decriminalization: What Does It Mean in the United States? Working Paper 9690. Washington, DC: National Bureau of Economic Research

10 U.S. Department of Health and Human Services, Substance Abuse and Mental Heath Services, 2003

11 Boyum, David A, and Mark A.R. Kleiman. 2002. “Substance Abuse Policy from a Crime-Control Perspective”. In Crime: Public Policies for Crime Control, ed. James Q. Wilson and Joan Petersilia, 331- 382. Oakland, California: Institute for Contemporary Studies.

12 King and Mauer, 2005. p.28.

13 Austin, James and Tony Fabelo. 2004. The Diminishing Returns of Incarceration. Washington, DC: The JFA Institute

14 U.S. Department of Justice, 2003. Felony Defendants in Large Urban Counties, 2000. Washington, DC: Bureau of Justice Assistance.

15 Bauer, L. and S. Owens (2004). Justice Expenditures and Employment in the United States, 2001. WDC: BJS

16 Aldrich, et al., 1986.

17 Benson, B.L., Rasmussen, D.W., and Kim,I. 1998. “Deterrence and Public Policy: Trade-Offs in the Allocation of Police Resources,” International Review of Law and Economics, 18:77-100.

18 Austin, James and Wendy Naro. 2003. Evaluation of the Washington DC Night Papering Field Test. Washington, DC: Washington DC Criminal Justice Coordinating Council.


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