The FBI\u2019s system of reporting state and local marijuana arrests may be seriously flawed, and a local Maryland official with extensive drug policy experience is asking the Justice Department Office of the Inspector General to launch a formal investigation into the matter.<\/p>\n
What seems to be at the center of the issue is confusion among local law enforcement agencies about whether citations issued for cannabis possession under state decriminalization laws are required to be reported to FBI as \u201carrests.\u201d That has led to inconsistency in the annually released data and, as a result, calls into question its utility as a tool that can inform policymaking when it comes to marijuana.<\/p>\n
FBI\u2019s Uniform Crime Reporting (UCR) program is widely relied on by lawmakers, researchers and media to understand and contextualize law enforcement trends, with more than 18,000 jurisdictions reporting to the agency on how many, and why types of, arrests are made in a given year.<\/p>\n
But when it comes to cannabis \u201carrests,\u201d there appears to be a problem that could have significant implications for policymakers and observers assessing the impacts of decriminalization policies and possibly even federal funding for police departments.<\/p>\n
In short, the cannabis arrest data reported through UCR may be inflated, with one state police department telling Marijuana Moment that their interpretation of FBI reporting guidelines means that they need to categorize simple civil violations for cannabis possession as arrests. But an analysis shows that that interpretation isn\u2019t being consistently adopted by departments, some of which have started reporting significantly fewer marijuana arrests post-decriminalization.<\/p>\n
The apparent problem promoted Eric Sterling, an attorney who currently serves as an appointed member of the Montgomery County, Maryland Policing Advisory Commission, to reach out to local and state law enforcement for answers. What he learned prompted him to demand an investigation from the Justice Department\u2019s Inspector General.<\/p>\n
Maryland decriminalized marijuana in 2014, making possession of up to 10 grams of cannabis a civil infraction punishable by a fine without arrest or the threat of jail time. But the Maryland State Police (MSP) says they still report the issuance of those fines as arrests. At the same time, one major city in the state, Baltimore, seems to have adopted a different system of reporting, with far fewer cannabis arrests being reported in the years after Maryland enacted decriminalization.<\/p>\n
\u201cThe Maryland UCR Program follows the National UCR Program guidelines when reporting crime data to the National Program,\u201d an MSP spokesperson told Marijuana Moment. \u201cIf a civil citation is issued for marijuana, then for UCR purposes, it is cited as an arrest.\u201d<\/p>\n
The state law enforcement agency cited the FBI\u2019s National Incident-Based Reporting System manual that instructs the reporting of \u201cviolation of laws prohibiting the production, distribution, and\/or use of certain controlled substances and the equipment or devices utilized in their preparation and\/or use.\u201d<\/p>\n
There\u2019s no distinction between civil violations and criminal arrests in that definition. So MSP is effectively saying that because marijuana isn\u2019t legalized in the state, but simply decriminalized with penalties still on the books, a simple fine is still required \u201cto be reported in a Group A Incident Report as an arrest for a drug\/narcotic violation.\u201d<\/p>\n
But Holly Morris, a public affairs specialist at FBI, told Marijuana Moment on Friday that there\u2019s a different page of that guidance that does actually account for three distinct types of \u201carrests\u201d that agencies are expected to report, including citations. It reads, in part:<\/p>\n
Valid Data Values\u2014[Law Enforcement Agency] should enter only one per arrestee:<\/p>\n
O=On-View Arrest (apprehension without a warrant or previous incident report)<\/p>\n
S=Summoned\/Cited (not taken into custody)<\/p>\n
T=Taken Into Custody (based on a warrant and\/or previously submitted incident report)<\/p>\n
Presumably, the \u201cS\u201d valid data value should be the designator that a formal \u201carrest\u201d wasn\u2019t made, but it\u2019s not clear that that information is effectively disaggregated on the publicly available UCR report in a way that would give researchers, media and lawmakers the context they need to inform analyses of marijuana enforcement in states that have enacted decriminalization.<\/p>\n
Sterling, who filed the new DOJ complaint, told Marijuana Moment that he grew suspicious about how FBI\u2019s policy was being applied with respect to the UCR program based on several conversations he\u2019s had with law enforcement.<\/p>\n
It\u2019s why he sent a letter to the U.S. Department of Justice\u2019s Inspector General, imploring the division to investigate what he described as \u201cwasteful misconduct\u201d by FBI to require police departments to \u201cwrongfully and inaccurately characterize important law enforcement data, and to publish false and misleading data about a very large and important class of police activity, arrests for marijuana violations.\u201d<\/p>\n
Sterling told Marijuana Moment in a phone interview that he\u2019s yet to hear back from the IG\u2019s office. He also reached out to the office of his congressman, Rep. Jamie Raskin (D-MD), who chairs a subcommittee of the House Oversight and Reform Committee and also serves on the Judiciary Committee, both of which would have jurisdiction over this matter. The congressman\u2019s office did not respond to Marijuana Moment\u2019s request for comment.<\/p>\n
The reason that this UCR information matters is multifaceted. Sterling, who previously served as counsel for the House Judiciary Committee, stressed that \u201cbecause the arrests are being miscounted\u2014arrests in decriminalization states\u2014it does seriously undermine the value of marijuana decriminalization as a cost saving for the police,\u201d which is one of numerous arguments that advocates make in favor of reform.<\/p>\n
Additionally, Sterling agreed that it\u2019s \u201cquite possible\u201d that arrest data from UCR overall may influence federal funding for state and local police departments, under programs like the Edward Byrne Memorial Justice Assistance Grant (JAG). A summary of the JAG program does note that UCR data on \u201cviolent\u201d crime as a factor in funding decisions, but it\u2019s not clear if that\u2019s the exclusive standard.<\/p>\n
\u201cIt is a profound distortion of police activity. It\u2019s an exaggeration of police activity,\u201d\u00a0 he said. \u201cAnd in a particular area of intense national conversation and policymaking\u2014that is, how do we control marijuana usage? Should the police be involved? The principal data is being distorted by the supposed premier data gathering intelligence.\u201d<\/p>\n
It\u2019s unclear how many of the thousands of police agencies that participate in UCR share MSP\u2019s interpretation of the FBI guidance, but a same-state example of how significant the arrest-to-citation disparity can be based on an individual agency\u2019s reporting is the fact that, after marijuana was decriminalized in Maryland in October 2014, reported<\/a> cannabis arrests in Baltimore City plummeted from 3,680 in 2014 to just 509 in 2015, while in Montgomery County they were reported to have actually increased over the same period, from 3,296 to 3,651.<\/p>\n The 2020 figures from Baltimore City show just 10 marijuana arrests, compared to 1,298 in Montgomery County, which is one of the lower numbers since 2009 but still roughly consistent with certain pre-decriminalization years.<\/p>\n Here\u2019s a comparison of marijuana arrests reported to FBI from 2009 to 2020 in the two Maryland jurisdictions:\u00a0<\/strong><\/p>\n