Marijuana cases used to be key to AZ prosecutors' work. Data shows they're now exceedingly rare

Marijuana offenses of all kinds dropped dramatically in Arizona following the voter-approved legalization law of 2020.

Prosecution statistics obtained from Arizona’s two biggest counties reflect a sea change in how the legal system views marijuana’s status since the law went into effect. The numbers show how the law has largely relieved police and prosecutors from enforcing a category of crime that had previously taken significant amounts of time and resources.

At the same time, thousands of Arizonans annually no longer face arrest and a felony charge for possession of an intoxicating plant; roughly half of Americans admit in polls to having tried.

“That’s a whole lot of people not having their lives ruined over an herb,” said Gary Smith, a Tempe-based lawyer and co-founder of the pro-marijuana Arizona Cannabis Bar Association.

Even for marijuana crimes outside of the new statutory thresholds for possession, cultivation and black market sales, prosecutions have declined sharply in Arizona since 2021.

Sgt. Robert Scherer, a Phoenix police spokesperson who's got nearly 25 years on the force, said it's a "fair assessment" to say legalization freed up resources now being used elsewhere.

"That's time to be had," he said of arrests and investigations involving only minimal pot possession. "We can go to other criminal matters, other calls for service.”

Maricopa County Attorney Rachel Mitchell, an experienced prosecutor who was appointed to the office in April 2022 after former County Attorney Allister Adel resigned, said that while no written policy at her office attempts to minimize marijuana-related prosecutions, "changing attitudes" in society over marijuana likely causes some prosecutors to skip some chargeable cases.

"There may be prosecutors who, based on their courtroom experience, say: 'You know, since this is just so little over the limit, there's probably not a reasonable likelihood of conviction,'" she told The Arizona Republic.

Asked if juries have shifted their feelings about marijuana cases since legalization, Mitchell said: "I would definitely say that's taken place."

On a federal level, marijuana’s status as a so-called highly abusive drug with no medical benefit is about to be downgraded. While that won’t directly lead to federal legalization, experts say it will further de-stigmatize use and research of the plant.

But in an interview with The Republic, Mitchell said she sees no benefit from legalization in terms of a reduced workload on marijuana cases, arguing the 2020 law led to a rise in fentanyl possession cases.

“I think that’s a false assumption that legalizing marijuana freed up resources because it’s just like squeezing a balloon – it popped out somewhere else," she said.

Pot busts relatively rare now

Possession of any amount of marijuana was a Class 6 felony before legalization. Adults in the state caught with marijuana were routinely booked into jail.

Phoenix police, the state’s largest municipal police agency, arrested people daily for possession of marijuana, even through a decade of legal medical marijuana.

Marijuana prosecutions in Maricopa and Pima counties continued at relatively high rates up until the recreational marijuana law kicked in, the statistics show. Scherer said one reason for that trend is simply that many violators had marijuana but no medical marijuana card to shield them from arrest.

After 2021, felony marijuana cases filed yearly by the Maricopa County Attorney’s Office fell from thousands to dozens.

Annual reports from the Maricopa County Attorney's office from 2015 and 2016 show marijuana cases were the single biggest category of case filings the agency had those years, comprising 15% of all felony case filings. A more recent annual report shows marijuana possession was still among the top 5 cases the agency handled in 2020.

Marijuana arrests and prosecutions disproportionately affected people of color, studies have shown. For example, in 2013, an American Civil Liberties Union report showed that Black people represented more than 13% of marijuana arrests but only about 3.5% of the population.

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The county’s prosecutors processed an average of more than 6,000 marijuana “possession or use” charges annually from 2016 to the end of 2019. In 2020, voters approved possession of small amounts of marijuana by adults 21 and older, new statistics from the agency obtained under Arizona public records law show.

That dropped to 2,725 in the pandemic year of 2020. And in 2021, the year the recreational marijuana law took effect, the number of possession prosecutions dropped to 26. Last year, the agency filed only 24 such cases.

Pima County recorded no felony marijuana possession cases in 2023 and none so far in 2024. Census Bureau data shows just over 1 million people live in Pima County, while Maricopa County's population stands at around 4.5 million.

Yet the 2020 law does have limits. Possessing between one and 2.5 ounces of marijuana flower is a petty offense subject only to a fine of no more than $300, while anything over 2.5 ounces remains a Class 6 felony under Arizona law. The felony threshold for concentrated cannabis products like vape oil or shatter is 12 grams. Similarly, the 2020 law allows residents to grow six plants each, up to 12 plants per household. Growing more than that — or growing the plants where they can be seen without binoculars — becomes a Class 4 felony.

Exceeding the statutory protections is legally risky. Selling marijuana without a dispensary license is a felony, too. The law also made soliciting sales of marijuana a petty offense for people under 21, but it’s legal for anyone 21 or older to transfer up to an ounce to someone else as long as they don’t receive payment for it.

Police and prosecutors are no longer concerned about an overage of a few grams or plants.

“Police agencies, at least in Pima County, are not focusing anti-substance abuse efforts on marijuana,” said Baird Greene, chief deputy of the Pima County Attorney’s Office.

Prosecutions of other marijuana offenses fell, too

Besides possession cases, criminal charges for black market sales, transportation and cultivation of marijuana have dropped significantly in the past few years, Maricopa and Pima county statistics show.

The Pima County Attorney’s Office, which has jurisdiction over a border county that covers a large swatch of southern Arizona, including Tucson, filed charges on just one felony case involving cultivation and sales of marijuana in 2023. The office reported it filed no charges that year involving only sales.

Pima County has charged only two cases of felony sale of marijuana so far this year. Since 2020, it’s charged only 20 cases of adult pot possession.

Mitchell’s office, which covers metro Phoenix, processed 564 charges for “sale or transportation of marijuana in 2016, for example, but only 33 last year. Felony possession of marijuana for sale cases dropped from 560 in 2016 to 84 in 2023.

Police simply aren't raiding homes for suspected marijuana crimes as much as they used to, said Tom Dean, an attorney who specializes in cannabis and marijuana cases. Police seem to be ignoring unlawful marijuana cultivation, sales and minor transportation cases, he said.

One reason is that the odor of marijuana is no longer probable cause to conduct a search, forcing police investigators to try to rely more on informants, he said.

"A lot of what I do is represent individuals charged with a marijuana offense. This has obviously impacted my business in a big way," Dean said.

Smith, whose pro-cannabis legal group boasts nearly 80 lawyers as members, said only recently have “pockets of resistance” to the new marijuana law seem to have come around.

“The world is evolving and changing. Societally, there’s a net-positive benefit,” he said of legalization. “You’re not sticking people with a bunch of crappy criminal records that will dog them for their entire lives.”

Did legalization contribute to the fentanyl crisis?

Mitchell pushed back on the idea that marijuana legalization improved anything.

The 2020 law helped cause the rise of the fentanyl problem now plaguing Arizona, she said, because it forced drug cartels to find a new business model.

“Fentanyl was introduced to make up for the profit loss when marijuana was legalized,” Mitchell said. “We wouldn’t have had the same level of fentanyl pouring into this country.”

The county attorney, a Republican running for reelection this year, said she’s seen studies that prove her theory and had an assistant share some with The Republic. The articles from the Financial Times and the Washington Post point to the rise of fentanyl as being driven primarily by U.S. demand, the flow of Chinese precursor chemicals and cartel preference for a drug that's easy to manufacture and smuggle.

Mitchell is struck by the statistical coincidence of her agency's drug prosecution rates. A chart produced by her agency shows the dramatic drop in 2020 and 2021 in felony prosecutions of marijuana possession cases came at the same time as an equally dramatic rise in fentanyl possession prosecutions.

Mitchell’s office prosecuted a few hundred fentanyl possession cases in 2020. That jumped to 4,245 in 2021 and to 8,297 last year, making up more than 85% of all narcotic drug possession cases. Other narcotic drugs under Arizona law include heroin, oxycodone and other opioids.

Yet fentanyl prosecutions are also increasing in states like Arkansas that don’t have a recreational marijuana law, weakening Mitchell’s conjecture.

Mitchell agreed the office would have had a staffing problem if it had to cope with an additional 6,000 marijuana cases yearly on top of the new explosion of fentanyl cases.

“We would definitely ask for people, but I do find this a very interesting juxtaposition of the decrease in marijuana and the increase in fentanyl,” Mitchell said.

Cheri Oz, Special Agent in Charge for the Drug Enforcement Agency in Arizona, declined comment on specific state laws but told The Republic the fentanyl problem is primarily a technology issue.

As Oz explained, the rising problem of the last few years stems from the $3 trillion Mexican cartel industry learning to rely less on weather-dependent harvests of coca leaves, poppies and marijuana. It instead shifted to rely more on fentanyl, a synthetic opioid easily made with precursor chemicals from China and India.

Oz said Mexico's Sinaloa cartel is flooding the United States with millions of pills containing varying levels of fentanyl, and much of it is first coming through Arizona.

The DEA and its law enforcement partners in Arizona seized 2 million fentanyl pills in 2019, she said. Last year, they seized over 44 million pills.

"A great deal is staying here," she said. "It's in circulation."

Fentanyl use and the market for fentanyl aren't directly comparable to that of marijuana, either.

More than 21% of Americans consumed marijuana in the past year, while fewer than 1% of Americans abused fentanyl, showing the "much greater marijuana use compared to other drugs," according to information in the Federal Register published this month as part of the request to change marijuana's status to a Schedule 3 drug.

The document also compares the addiction levels of fentanyl, alcohol and other drugs to marijuana, concluding that it is "relatively mild compared to those associated with alcohol withdrawal, which can include agitation, paranoia, seizures, and even death," and "withdrawal from marijuana is associated with less severe symptoms than withdrawal from other drug classes."

Reach the reporter at  rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.

This article originally appeared on Arizona Republic: Arizona marijuana crime: Data shows prosecutions now exceedingly rare