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Tesla CEO Elon Musk reposted this meme on Sunday morning and tweeted, “Maybe free some people in jail for weed here too?”:

While some commenters remarked on their lack of sympathy for WNBA star Brittney Griner, others noted how US cannabis policies appear unfair and illogical. But is Musk right?

Cannabis policy in the United States

In 2020, Forbes.com reported that over 40,000 people were incarcerated for marijuana offenses in the United States.

In July, senators Cory Booker, Chuck Schumer, and Ron Wyden introduced a bill that would rethink and change cannabis policy in the US. Under the proposed bill, people who have been convicted of federal marjiuana offenses would be eligible for expungements and cannabis would be removed from the Schedule I list of controlled substances.

Schedule I drugs are defined as “drugs with no currently accepted medical use and a high potential for abuse.” Right now, 37 states allow residents to consume cannabis for medical purposes. Nineteen states allow adults to use cannabis for any reason.

Selling or trafficking vs. mere possession

Federal and state laws treat possessing a controlled substance with the plan to sell it differently from possessing a controlled substance for personal use. Although the vast majority of federal cannabis charges are for the commercial possession of marijuana, a striking number of state convictions are for simple possession of cannabis. The sentences for simple possession are not as severe as the sentences for possession with intent to sell or distribute, but simple possession can often result in jail or prison time. 

Myths about criminal records of people convicted of trafficking marijuana

Although some assume that people who are charged and convicted of marijuana trafficking are hardened criminals with lengthy records, the United States Sentencing Commission reported that, in 2019, 65.2% had “little or no prior criminal history” and only 3% were considered career offenders.

Is Elon Musk right?

Before the mid to late 20th century, prison and jail sentences were shorter and long sentences were limited to more serious crimes.If the idea is that only violent, dangerous, or those with a long history of committing drug offenses should be in prison for cannabis offenses, then Musk is absolutely correct and we should be doing more to free people who are incarcerated for cannabis offenses.