A Justice Department watchdog took more than a year to reply to an attorney’s letter outlining concerns about apparent defects in how the Federal Bureau of Investigation (FBI) collects and reports data on marijuana possession arrests—then finally responded by suggesting that the FBI should investigate itself.
Eric Sterling, a longtime drug policy reform activist and former congressional staffer, sent a letter to DOJ’s Office of the Inspector General (OIG) in May 2022, claiming to have discovered that a Maryland police department was reporting cannabis possession citations issued under the state’s decriminalization law at the time as arrests as part of a long-standing data sharing partnership with FBI. If other state and local law enforcement agencies were similarly lumping those penalties together, Sterling reasoned, the practice could significantly alter FBI’s annual reports, which are used to inform public reporting and policymaking.
Including simple citations for marijuana possession in the same category as arrests—where people are taken into custody, booked and processed—would inflate the number of recorded arrests, potentially skewing public perceptions of how police prioritize resources and painting an inaccurate picture of how policies such as decriminalization and legalization are being implemented by law enforcement.
Sterling, who serves as an appointed member of Policing Advisory Commission for Montgomery County, Maryland, recommended in his letter that the DOJ inspector general’s office launch a formal investigation.
Last week—about 14 months after Sterling sent the inquiry—the office finally replied. Rather than address the apparent problem, however, the OIG investigations division said it had “determined that the matters that you raised are more appropriate for review by another office within the DOJ” and referred the inquiry to FBI’s own inspection division.
The delay, Sterling told Marijuana Moment in a phone interview on Monday, suggests DOJ’s own investigators are “overwhelmed and not able to process the incoming complaints in any kind of timely manner, and the ability to respond to much more serious instances of misconduct is compromised.”
But timeliness could be crucial, as letting the matter languish for more than a year could mean yet another annual Uniform Crime Report from FBI that fails to accurately reflect cannabis policy changes being enacted across the country.
A spokesperson for DOJ’s Office of the Inspector General declined to comment, referring Marijuana Moment “to the FBI for any further questions on this topic.” FBI, however, did not immediately respond to a request for comment.
The issue is especially relevant in jurisdictions that decriminalize marijuana, as those policies typically maintain some level of civil penalty for possession—the kind of citation that might be misreported as an arrest.
“We’ve got very senior members of Congress introducing major proposed federal reforms of the marijuana laws. You have state after state seriously considering whether to abandon marijuana prohibition. And in so many of these states, a primary issue is, how much does marijuana prohibition and its enforcement cost?” Sterling, who founded the Criminal Justice Policy Foundation and has served on numerous other drug policy reform organizations’ boards, said. “A primary driver of those costs are arrests.”
He said that by failing to require a disaggregation of cannabis citation versus arrest data, FBI is “handicapping” the debate over marijuana policy reform “by generating data that leads to distorted pictures of what the police are doing.”
For instance, proponents of marijuana decriminalization and legalization often argue that the policy change would free up law enforcement resources, which could then be spent on other priorities. Miscategorizing citations as arrests would effectively understate that impact and could even exaggerate crime levels.
FBI’s cannabis enforcement reporting is also compromised by the fact that local and state police are not required to share data to inform the agency’s annual report, meaning it offers an incomplete overview of national law enforcement activities. The agency itself says that certain data may not be comparable to previous years because of different levels of participation over time. The latest quarterly report released in June included data from “12,518 of 18,900 law enforcement agencies in the country.”
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Questions about the accuracy of FBI’s reporting notwithstanding, recent trends are still generally consistent with expectations, with the agency showing cannabis arrests declining in recent years as more states have moved to enact legalization.
The Drug Enforcement Administration (DEA) also says it made fewer marijuana arrests last year, even as the number of cannabis plants eradicated by the agency grew.
And federal data from Customs and Border Protection (CBP) released in January indicate that cannabis seizures fell to a record low in Fiscal Year 2022.
A report from the Government Accountability Office (GAO) released last year also paints a clearer picture of who is getting caught up in enforcement activities. At checkpoints across the country, agents are mostly seizing small amounts of marijuana from American citizens rather than busting large shipments from international cartels.
Also consistent with other studies and federal reports, last year’s analysis showed a significant decline in cannabis seizures at checkpoints overall since 2016. Border Patrol seized 70,058 pounds of marijuana at checkpoints in 2016 compared to just 30,828 pounds in 2020.
In another report from last year, the Congressional Research Service said that state-level legalization, combined with international reform efforts, has reduced demand for illicit marijuana from Mexico. Congressional lawmakers have also recently cited the impact of legalization on transnational drug cartel operations.
Read the DOJ IG response to Sterling below: