Is the Federal Bureau of Investigation miscounting the true number of marijuana arrests nationwide? One attorney says there’s good reason to think so, and just filed an official complaint with the federal government.
Eric Sterling, a member of the Policing Advisory Commission of Montgomery County, Maryland, and a longtime drug policy reform advocate, filed a complaint May 5 with the Office of Inspector General for the US Department of Justice. As Marijuana Moment reported, he’s calling for the DOJ to investigate the FBI over its handling of its Uniform Crime Reporting program (UCR)—specifically, how it counts marijuana arrests.
The FBI publishes its UCR annually, detailing how many arrests are recorded for different offenses nationwide. The problem, Sterling found, is how the FBI is counting marijuana arrests in states that have decriminalized the drug. Where police are issuing citations—a civil penalty that doesn’t involve arrest or jail-time—those may be being counted as “arrests” in the FBI data.
This distinction matters. Because if it’s true that federal marijuana data are inflated, that could undermine political support for marijuana legalization—which has, of course, stalled in Congress. What’s more, it could impact debates over police funding.
There are currently 12 states which have decriminalized but not fully legalized marijuana. But this data discrepancy likely goes back many years, meaning its consequences do, too. Filter caught up with Sterling to ask him more.
Alexander Lekhtman: You took on your role with the Policing Advisory Commission for Montgomery County shortly after the police murder of George Floyd in 2020. What have you discovered since?
Eric Sterling: Looking at the [arrests] data, knowing we had marijuana decriminalization [in 2016], I was quite shocked to see thousands of marijuana arrests reported for our county. When I brought this up, one of the assistant police chiefs said, “That’s not right. We’re certainly not arresting that many people for marijuana. Let me see if I can give you a more accurate answer.”
And he couldn’t give me an accurate answer, he gave me an estimate. He said it looked like maybe only 5 percent of this number were truly possession arrests—all the rest were simply the issuance of citations for marijuana possession, which in our state are civil, non-criminal offenses.
How can this be? how can you be reporting this issuance of tickets as arrests? They said, “The state requires it.” So I called the head of the Central Records Division and said, “I’m trying to understand—you’re reporting thousands of these marijuana arrests around the state.” And she said, “Yes, that’s required by the FBI.”
And I was shocked by this because this number cumulatively is huge. You’ve had many states that have had decriminalization, and it wholly distorts the number of arrests police are doing around the country.
“Our ability to say the public is benefiting from decriminalization is subverted by the exaggerated data.”
What is the consequence of this distorted data?
Many states decriminalized marijuana. One of the longstanding arguments in favor of it is that it would save money by reducing these unnecessary police activities. An important benefit of decriminalization is the elimination of a wasteful and expensive activity—aside from, of course, the enormous benefit to the person who is not arrested.
If the county police report they’re making 2,000 marijuana arrests, but they’re actually only making 20, when we attempt to calculate our savings, our ability to say the public is benefiting from decriminalization is subverted by the exaggerated data.
How does this affect our perception of police activity?
It means the public believes that more young people and people of color are being potentially stopped and harassed by police than is actually taking place. So the reputation of police is actually undermined by this exaggerated data.
A police officer who maybe responsibly says, “Hey, you can’t smoke marijuana here in this public swimming pool, take this ticket.” That gets reported as an arrest—and the community says, how come our police are arresting so many of our young people for marijuana when we’ve got an opioid epidemic, violent crime going up?
It very much distorts the police appropriations process.
Does this result in inflated police budgets?
It’s something we can only speculate about. When a police chief goes before appropriators—the county council or city council—and says, “The budget we want authorized for next year is so many hundred million dollars, and this is the data that demonstrates how we’re performing, our department made 15,000 arrests last year.” If that number is exaggerated by 10 percent because 1,500 of those are marijuana possession arrests, that very much distorts the appropriations process.
If you have a police [department] that spends millions of dollars and [instead] they say, We don’t do any arrests, you’d say: Do we need a police department this big? What’s going on?
Where does the FBI come into this, and what is their responsibility?
They decide how to characterize the data and its inclusion in the national standards, and the definitions of these offenses. I believe it is a very badly conceived idea of uniformity that led the FBI to say, “We’re going to count these citations as arrests, because other states that don’t have decriminalization are counting arrests; we want to show violations of marijuana laws are taking place.”
I suspect this is happening in every decriminalization state to some extent—where some kind of citation is given out, and the state is gathering data to forward to the FBI; it is instructing the local police departments that these data be reported as arrests.
Is there another motive?
I don’t know. I hope reporters will look at this and say, yes this is an important enough question that we want the FBI to answer it—or hopefully, members of Congress. We’re talking about tens of thousands of reported arrests that may or may not be bogus.
Does the Office of Inspector General have to respond to your complaint?
I don’t believe the OIG has any obligation to reply to me that they’re taking my complaint seriously, or any timeframe they have to announce in advance. Unless reporters or Congress call them and ask what’s the status, I may never hear from them.
Can this become a lawsuit and go to court?
Maybe a state police agency that compiles this data can say, “We’re going to sue the FBI because they’ve instructed us to report data that is fraudulent and misrepresents to our state what our police are doing, and that leads to bad public policy.” That’s a potential plaintiff.
Photograph by Maryland GovPics via Flickr/Creative Commons 2.0