“When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head. We have literally filled up our jails with people who are nonviolent and frankly do not belong there.”
—Former House speaker John A. Boehner (R-Ohio), in an interview with Bloomberg News, April 11, 2018

Boehner, who once opposed marijuana legalization, made headlines recently when he announced he had joined the advisory board of Acreage Holdings, a multi-state cannabis company with holdings in both medical and adult-use states. His shift shows that acceptance of marijuana use has increasingly become mainstream.

But that doesn’t mean the facts have followed. In explaining his decision, Boehner repeated a myth — that the United States has “filled up our jails” with nonviolent people whose only crime was that they possessed marijuana.

The Facts

There’s no question that in the United States, many people are arrested for marijuana possession. Nearly 600,000 people a year are arrested for marijuana possession, or more than one marijuana possession arrest every minute, according to estimates from Justice Department data.

But relatively few of those arrested end up in prison. Most prisoners are in state systems, and the Department of Justice does not break down exactly the percentage of people who are in prison for marijuana possession — just all types of drug possession, including hard drugs such as heroin. The federal data, however, does provide that breakdown.

So what do we find? In the state correctional institutions, only 3.4 percent of prisoners were in jail for all types of drug possession as of Dec. 31, 2015, according to the Justice Department. While Boehner claimed that the prisons have been filled with nonviolent prisoners, the data show that 54.5 percent are in prison for violent crimes such as murder, rape and robbery and 18 percent involve property crimes; another 11.6 percent are in prison for public order offenses.

In the federal system, the numbers for marijuana possession are astonishingly low. Only 92 people in 2017 were sentenced for marijuana possession in the federal system out of a total of nearly 20,000 drug convictions, according to the U.S. Sentencing Commission. That is one-half of 1 percent. Out of all of the drug possession charges, marijuana possession made up 43 percent of all of the drug possession cases.

If that ratio held true in the state prison population, that would mean about 19,000 prisoners for marijuana possession, out of 1.3 million. That’s about 1.5 percent. (Note: this is only intended as a very rough illustration, given the paucity of the data. Indeed, Fordham University Professor John Pfaff, who has closely studied the data, concluded the number in prison for marijuana possession could be as low as 0.1 percent. But he says the data used to generate that number had a lot of limitations.)

Jonathan P. Caulkins, professor of public policy at Carnegie Mellon University, noted that when reviewing the data, it’s important to remember that there are several ways that simple marijuana possession can lead to incarceration: It was a violation of probation or parole for another conviction; it was part of a charge bargain down from a more serious offense; it was a “third” strike under some three-strike laws (e.g., if on probation or parole, then a misdemeanor can be promoted to a felony so it can be a third felony).

“He is wrong,” Caulkins said. “He is parroting the pro-legalization party line that has been making such claims for a long time. The standard story that the legalization lobby pushes is very rare for prison, and is not terribly common for jail.”

Dave Schnittger, a Boehner spokesman, initially defended Boehner’s statement by directing The Fact Checker to a 2017 report that appeared in Newsweek. The article, without citing a source, said that marijuana possession accounts “for more than five percent of all incarcerations, or roughly 100,000 Americans.” He said this article “was the basis for the speaker’s assertion.”

Since this was directly contradicted by the Justice Department data, we sought an explanation. It turned out that either through a reporting or editing error, Newsweek garbled a statistic borrowed from a Washington Post article. After our inquiry, Newsweek quickly corrected the article to say that marijuana possession accounts for more than 5 percent of all arrests, not incarcerations.

In other words, Boehner relied on a bum news report without seeking confirmation from an official source.

“It’s no secret that America’s jails are overcrowded; Speaker Boehner’s point was that the incarceration of nonviolent individuals for possession of small amounts of cannabis is contributing to the overcrowding problem and that adjusting our laws to reflect changing public sentiment on the issue, as many states today are already doing, can help address the problem,” Schnittger said. “The speaker is not attempting to make the claim that incarcerations for marijuana possession are the primary reason America’s prisons are overcrowded. He is arguing that our prisons are overcrowded, and that reducing the number of people who are incarcerated for something that many Americans today no longer even believe should be illegal is a logical place to look when we’re looking for ways to stop ‘filling up our jails.’”

The Pinocchio Test

We often warn politicians that they should not simply rely on a news report for information. The Newsweek report should have raised a red flag to anyone who had studied the federal data — and indeed it was wrong. Kudos to Newsweek for quickly correcting the story.

Under no stretch of the imagination has the United States “literally filled up our jails with people who are nonviolent.” Very few people end up in prison for marijuana possession, and those who do are probably there for another complicating factor. Boehner says he doesn’t personally indulge, inhaling only Camel cigarettes. But either way, he’s blowing smoke here. He earns Four Pinocchios.