Federal Sentencing Commission Approves New Marijuana Guidelines

April 7, 2023

The federal U.S. Sentencing Commission (USSC) has approved an amendment to update sentencing guidelines advising judges to treat prior marijuana possession offenses more leniently. The revised guidance will now be sent to Congress by May 1. If lawmakers don’t contest the amendment, the change will be finalized effective November 1.

USSC released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.

Currently, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions in new cases. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences.

The proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted,” according to a synopsis. “While marihuana remains a Schedule I controlled substance under the federal Controlled Substances Act (CSA), subjecting offenders to up to one year in prison (and up to two or three years in prison for repeat offenders), many states and territories have reduced or eliminated the penalties for possessing small quantities of marihuana for personal use,”

Here’s the newly adopted commentary language on cannabis possession for the sentencing guidelines:

Downward Departures.— (A) Examples.—A downward departure from the defendant’s criminal history category may be warranted based on any of the following circumstances:

(ii) The defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person.

All the amendments are here https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20230405_prelim-RF.pdf