As with any policy shift, the gradual regulation of marijuana in the United States will have implications for a wide variety of populations. Indeed, the removal of marijuana from the criminal justice system has already started. However, like the recent shift in marriage policies to allow same sex marriage, the impact from a policy change can often be slow to reach the immigration community. This leaves this population in limbo, even after the rest of the country assumes change has happened.
Recently, a report was released by the Center on Juvenile and Criminal Justice (CJCJ) that looked at holds placed on individuals in California by the Immigration and Customs Enforcement (ICE) and which suspected criminal activities were most likely to result in detainment. ICE is charged by the Department of Homeland Security to maintain public health and safety. So, one would assume that accusations of violent crimes would be the most likely reason for detaining an undocumented foreign national.
However, this is not what the report revealed. Instead, the authors found that, “an undocumented foreign national with a traffic offense is more likely to be booked into ICE detention than one with a homicide, forcible rape, robbery, or aggravated assault offense.” The authors also found that “a suspected undocumented immigrant with a prior or contemporaneous conviction for possessing less than an ounce of marijuana – which is no longer even a crime in California – is more likely to face ICE detention (73.1 percent) than one with a rape conviction (69.7 percent).”
When looking further into those detained for marijuana related offenses, we find that 2 percent (1559) of the almost 78,000 ICE hold requests during this period in California were for people whose most serious offense was marijuana (83 percent of these individuals were from Mexico) and 73 percent of ICE hold requests related to marijuana resulted in detention, vs. 68 percent of those booked for a violent crime. This pattern of ICE holds and detentions for marijuana possession is not in line with the mission of ICE to protect public safety or with the changing values and norms around the use and possession of marijuana.
The overuse of ICE to detain those accused of marijuana crimes is a burden being carried by the tax payer. Most (75 percent) of ICE hold requests for people with marijuana-related convictions are directed at local jails, costing taxpayers $267,060 per year solely for federal civil immigration purposes if all the requests were granted. With rape and other violent crime less likely to result in an ICE detainment than marijuana possession, the investigation into these practices by the CJCJ was warranted and raises questions about the violations of human rights and the economic utility of these practices.
Because most of the marijuana-related ICE holds are for simple possession, we do see strides made when the criminalization of marijuana possession is down-graded. After marijuana possession of less than on ounce became an infraction in California in 2010, there was a sharp drop in marijuana possession convictions among ICE hold detainees. This pattern occurred for Californians in general, following the passage of SB 1449 (70 percent of ICE holds had a marijuana conviction in 2010, 11 percent in 2013) Making possession of less than an ounce created a major shift in the numbers of marijuana-related holds, and taxing and regulating marijuana like alcohol would essentially eliminate marijuana-related ICE holds.
If the true goal of departments like ICE is to protect the public health and safety of those in the United States, focusing enforcement efforts and financial resources on detaining violent criminals makes more sense than targeting low level marijuana use and sales.
Amanda Reiman is a policy manager for the Drug Policy Alliance.