The difference between becoming a successful entrepreneur in a fast-growing industry and becoming a federal prisoner may largely depend on which state you place your business in. This is the reality for those in the marijuana business. This predicament occurs because of two issues: the increasing spread of marijuana legalization for both medical and recreational use at the state level,1 and the Department of Justice’s decision not to enforce federal marijuana laws against those in compliance with their states’ laws, while maintaining full enforcement against everyone else.2

While this seems unproblematic at first glance, 18 USC § 3553(a) provides that one of the factors judges must consider in imposing a criminal sentence is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”3 The sentence should also “reflect the seriousness of the offense.”4 Because the federal government is willing to accede to popular will and forego enforcement of marijuana laws in many states, the seriousness of the offense is lessening. This selective enforcement has created a regime in which some ostensible drug felons are allowed to become entrepreneurs and others who commit the same acts go to prison. As such, conforming to these two provisions suggests that a substantial downward variance from the sentence a court would ordinarily impose on a federal marijuana offender is appropriate.

Indeed, in light of the nature of federal drug sentencing, it is imperative that the judiciary acts on this issue. Federal sentencing is based primarily on interaction between the Federal Sentencing Guidelines (the Guidelines), statutory mandatory minimum sentences, and judicial discretion.5 While the Guidelines were once mandatory, it was clear from their inception that the United States Sentencing Commission (the Commission) both needed and expected judges on the ground to provide feedback in order to maximize the Guidelines’ effectiveness. This feedback loop was built in to ensure that the Guidelines reflected a proper balance between the wide-scale policy analysis of the Commission and the actual experiences of federal judges.6

This Comment argues that because a majority of states,7 both the executive and legislative branches of the federal government, and the American people have placed decreasing emphasis on the seriousness of marijuana crimes, judges should use their discretion to impose primarily noncustodial sentences for marijuana offenders. Furthermore, judges should use their discretion in this way because selective enforcement of federal marijuana laws as currently implemented creates a system that doubly advantages white citizens—both decriminalizing and allowing them to profit from marijuana activities, while simultaneously exacerbating existing racial disparities in marijuana sentencing.

Part I of this Comment examines the role of the Guidelines in federal criminal sentencing and their interaction with the § 3553(a) sentencing factors. Part II examines the current public perception of marijuana and the status of marijuana laws on the state and federal levels. Part III focuses on several analogies to the current state of marijuana prosecution and sentencing. These analogies compare modern examples of judicial discretion in applying the Guidelines surrounding cocaine base and possession of child pornography, as well as the historical example of the Fugitive Slave Laws of 17938 and 1850,9 to the current regime of federal marijuana nonenforcement.

Part IV argues that these analogies suggest that when the political branches use their power to corrupt the Commission’s empirical methods, a pattern emerges: a relatively politically powerless or unpopular group is disproportionately burdened for political benefit. As the analysis of the Fugitive Slave Laws shows, this theme has roots in the earliest parts of American history. Part IV provides an analysis of the § 3553(a) factors based on the popular perceptions of marijuana and the state of marijuana laws described in Part II, as well as the lessons learned from the various analogies covered in Part III. Finally, Part IV presents a solution, ultimately arguing that, to the extent a defendant’s actions violate only federal marijuana laws, the § 3553(a) factors suggest that a judge should impose a noncustodial sentence.

  • 1. See Part II.A.
  • 2. See Part II.B.
  • 3. 18 USC § 3553(a)(6).
  • 4. 18 USC § 3553(a)(2)(A).
  • 5. Statutory mandatory minimum sentences, and prosecutors’ discretion in bringing charges that trigger them, are the subject of much debate. Compare, for example, Ilene H. Nagel, Foreword: Structuring Sentencing Discretion; The New Federal Sentencing Guidelines, 80 J Crim L & Crimin 883, 895–99 (1990) (noting that Congress’s decision to move away from indeterminate sentencing was largely a reaction to rampant and unjustified variations in sentences imposed for factually identical crimes), with David Bjerk, Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Mandatory Minimum Sentencing, 48 J L & Econ 591, 592 (2005) (“While mandatory minimum sentencing laws appear to significantly curtail the discretionary influence judges have over the minimum sentences they impose on convicted criminals, the point has been raised that these laws may simply shift the discretion to other actors in the judicial process, namely, prosecutors.”) (citation omitted). That debate, however, is largely outside the scope of this Comment.
  • 6. See Part I.A.
  • 7. At the time of writing, a majority of states, Guam, Puerto Rico, and the District of Columbia have either legalized or decriminalized marijuana in some way. See State Medical Marijuana Laws (National Conference of State Legislatures, Sept 29, 2016), archived at (“A total of 25 states, the District of Columbia, Guam and Puerto Rico now allow for comprehensive public medical marijuana and cannabis programs.”); Marijuana Overview (National Conference of State Legislatures, Sept 2, 2016), archived at (“Twenty-one states and the District of Columbia have decriminalized small amounts of marijuana.”).
  • 8. Act of Feb 12, 1793, 1 Stat 302.
  • 9. Act of Sept 18, 1850, 9 Stat 462.