In our recent post about cannabis community division over Amendment 64, the Regulate Marijuana Like Alcohol Act, Mason Tvert, among the measure's main proponents, said passage of the initiative would prevent as many as 12,000 pot-related arrests per year. Is this estimate reasonable? A report on view below implies that it is, although a local attorney concedes that pinning down actual numbers is difficult.
"Marijuana in Colorado: Arrests, Usage and Related Data," a 2009 study by Jon Gettman accessible at DrugScience.org and on view below, sports the following passage:
Marijuana arrests in Colorado increased from 11,163 in 2003 to 12,358 in 2007. The arrest rate in 2003 was 245 per 100,000 while in 2007 it was 254.
The source for the arrest data is attributed to the FBI's Uniform Crime Reporting (UCR) Program.
These figures are echoed in the following comment by Tvert about Amendment 64: "This initiative, if it passes, will immediately result in upwards of 10,000 to 12,000 Coloradans not being arrested over the course of the next year for marijuana-related offenses. So opposing this initiative is supporting the arrests of 10,000-plus Coloradans for marijuana crimes."
Speaking today, Tvert says the arrest figures used by the Amendment 64 campaign are mainly from two sources: the FBI's Uniform Crime Report (also used by Gettman) for the years 2007 through 2009, and Colorado Bureau of Investigation figures for 2010.
Granted, there are limits in the amendment language pertaining to activities that will be legal for adults age 21 and over should voters give their approval. Here's the section in question:
(3) Personal use of marijuana. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE UNDER COLORADO LAW OR THE LAW OF ANY LOCALITY WITHIN COLORADO OR BE A BASIS FOR SEIZURE OR FORFEITURE OF ASSETS UNDER COLORADO LAW FOR PERSONS TWENTY-ONE YEARS OF AGE OR OLDER:
(a) POSSESSING, USING, DISPLAYING, PURCHASING, OR TRANSPORTING MARIJUANA ACCESSORIES OR ONE OUNCE OR LESS OF MARIJUANA.
(b) POSSESSING, GROWING, PROCESSING, OR TRANSPORTING NO MORE THAN SIX MARIJUANA PLANTS, WITH THREE OR FEWER BEING MATURE, FLOWERING PLANTS, AND POSSESSION OF THE MARIJUANA PRODUCED BY THE PLANTS ON THE PREMISES WHERE THE PLANTS WERE GROWN, PROVIDED THAT THE GROWING TAKES PLACE IN AN ENCLOSED, LOCKED SPACE, IS NOT CONDUCTED OPENLY OR PUBLICLY, AND IS NOT MADE AVAILABLE FOR SALE.
(c) TRANSFER OF ONE OUNCE OR LESS OF MARIJUANA WITHOUT REMUNERATION TO A PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER.
(d) CONSUMPTION OF MARIJUANA, PROVIDED THAT NOTHING IN THIS SECTION SHALL PERMIT CONSUMPTION THAT IS CONDUCTED OPENLY AND PUBLICLY OR IN A MANNER THAT ENDANGERS OTHERS.
(e) ASSISTING ANOTHER PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER IN ANY OF THE ACTS DESCRIBED IN PARAGRAPHS (a) THROUGH (d) OF THIS SUBSECTION.
As these passages make clear, Amendment 64 would only provide protection from Colorado authorities for individuals possessing an ounce or less of marijuana and/or six plants, three of which can be flowering. (Marijuana remains illegal at the federal level.) And there's no telling from the Gettman study how many of the busts he enumerates involved amounts that would fall under these limits, as opposed to arrests for more than an ounce and six plants.
As seen in documents shared by Tvert (they're on view below), the info the campaign's received about marijuana arrests in Colorado features some breakdowns, but most of them pertain to race -- although there is a differentiation between "sale and manufacturing of marijuana" and "possession of marijuana." He concedes that "a lot of these agencies really don't do a great job of handling data, which we learned during our Denver Marijuana Policy Review Panel. It was very difficult for us to ultimately get statistics even in Denver. We got some figures being kept by the police, and some figures being kept by prosecutors or the city attorney's office, and they didn't always match up. So it's really difficult to be precise."
This point is echoed by medical marijuana attorney Warren Edson.
"It's a conundrum," he says. "If there was a DU law student who had a year to do a project, you could maybe get some numbers. But even then, they'd be rough, because there are so many little municipalities around the state. Where does it end?"
Still, Edson notes that under the current system, small offenses can result in bigger-than-expected penalties.
The Gettman study lists the typical penalty for possession of less than an ounce of marijuana as a $100 fine. But Edson notes that punishments vary by jurisdiction, with some parts of the state still applying a sentencing range of up to a $1,000 fine and a year in jail to even arrests at this level. He describes Westminster and Lakewood as two communities that can be especially tough on those found with even small amounts of marijuana.
"We need to get over the myth that this is a simple traffic ticket," he says. "I have to warn my clients, 'If you're not nice to the officer, the officer can charge you into municipal court.'
"Say you're on Sixth Avenue going to Red Rocks. Bingo, speeding. You're pulled over, you're nasty to the cop, and boom -- it's no longer a traffic ticket. You're having to go to court and take time off work and all of that fun stuff."
Actual time behind bars is rare for small amounts, but it happens, Edson allows -- although often because of other factors.
"I'm not saying anybody is looking to put folks in jail for a first time offense of under an ounce," he points out. "And if they say 'no jail,' you don't have the right to a public defender, and that makes it cheaper and easier for the city as well. But what if you violated probation? Did you go to jail because of weed or because you shoplifted at Target and then were caught peeing hot?"
Here's the Gettman study. That's followed by FBI, CBI and Denver law enforcement figures for marijuana arrests by race from 2006 to 2010. In the first three documents on page three, pertaining to the years 2007, 2008 and 2009, note that the horizontal row 18B enumerates busts for "Sale and Manufacturing of Marijuana" and 18F tots up "Possession of Marijuana" arrests.
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More from our Marijuana archive: "Marijuana community divide on Amendment 64 deep, wide, often nasty."