Advocates say legalizing recreational pot will stop needless arrests. What are the legal consequences in Florida now?

Florida voters could vote this November to legalize recreational marijuana. But does anyone face legal consequences for smoking pot now?

As Gov. Ron DeSantis campaigns against Amendment 3, he has repeatedly said no one goes to prison for simple possession.

“The number of people that are in prison in the state of Florida right now for either consuming or possessing personal amounts of marijuana is zero,” he told 92.5 Fox News in Fort Myers last month.

But like many issues around the enforcement of marijuana laws, the true details are somewhat cloudy.

According to the Department of Corrections, the Florida prison system currently detains 37 convicts in Florida state prisons whose primary offense was possession of marijuana. In all cases, those individuals were found guilty of having more than 20 grams of marijuana.

But officials say each of those individuals had their sentences enhanced either because they already had an extensive criminal record at the time of their arrest, or there were severe accompanying crimes like grand theft, battery, child abuse or possession of other illicit substances, according to the state.

“It is also important to note these individuals make up less than 0.05% of the total inmate population,” an email from the Department of Corrections reads. The Florida prison system incarcerates some 80,000 inmates, according to the agency’s website.

Advocates of legalizing marijuana say the number of arrests for possession only tells part of the story. Far more often, individuals get arrested for one crime and see sentences extended when coupled with marijuana charges. Other times, drug charges make it onto jail booking sheets but prosecutors negotiate those away as part of plea deals, ultimately leaving defendants facing harsher sentences as a result even if courts never adjudicate them guilty of possession.

“It’s also important not to conflate jail and prison,” said Morgan Hill, a spokesperson for the Smart & Safe Florida campaign behind Amendment 3. “Even if someone is arrested and held overnight, it still enters them into the criminal justice system. It makes it so there is a mark on their record. It makes it harder for them to enroll in higher education or to get a better job. This goes way beyond just the jail and prison sentence.”

And plenty of people still end up spending a night in jail and dealing with that mark, even if the threat of state prison time never arises. Under Florida law, even a misdemeanor drug offense can land an individual in county jail for up to 11 months and 29 days. And it’s no easy task tracking down just how many such 11/29ers may be detained at any given time.

The National Organization for the Reform of Marijuana Laws, or NORML, tracks arrests nationwide. Unquestionably, the group said thousands end up arrested on marijuana charges in Florida each year, though the advocacy group said Florida remains one of the hardest states in the U.S. to track down exact numbers.

“For many years, Florida was among the two or three states that failed to report annual marijuana arrest data to the FBI,” said Paul Armentano, Deputy Director of NORML. “For the handful of sporadic years they did provide data, marijuana-related arrests typically averaged around 40,000.”

More recently, he said officials offered wildly different data. The Florida Department of Law Enforcement in its FBI Uniform Crime Report said Florida law enforcement agencies arrested 2,349 individuals in 2022 for possession charges at some level. Yet the same year, prosecutors in Florida filed more than 16,000 charges against people for possession of small amounts of pot, according to reporting in July by the Tampa Bay Times.

Similarly, a Uniform Crime Report released for 2023 shows the state saw 3,675 marijuana-related arrests for 2023, a substantial increase from the 2,349 the prior year. But the Manhattan Institute’s Charles Lehman, in a recent Wall Street Journal op-ed critical of Amendment 3, reported there were 7,349 such arrests in the state, unsourced but presumably not drawn from thin air.

For NORML, simply documenting the number of arrests statewide proves infuriating.

“As I’ve said on multiple occasions, regardless of where one falls on Amendment 3, it is absurd that Florida voters are being asked to vote on amending state marijuana policy without having accurate information regarding either the size, scope, or cost of the policy that they are being asked to decide upon,” Armentano said.

Still, even the data showing the most aggressive arrest patterns suggests Florida enforces marijuana laws with less vigor than other states. Texas in 2023 reported more than 25,000 marijuana-related arrests in its FBI Uniform Crime Report data. Pennsylvania, a less populous state than Florida, reported more than 12,000 arrests.

But for some advocates of Amendment 3, the low enforcement rate shows more reason why society would be better off if voters simply legalize cannabis. That includes Bradford Sheriff Gordon Smith, who endorsed Amendment 3 even as colleagues in the Florida Sheriffs Association took a stance against it.

As a young police officer, he arrested people on drug charges, including simple possession. Florida no longer incarcerates anyone for possession of less than 20 grams.

Smith notably opposed a medical marijuana measure passed by Florida voters in 2016, but has since seen the drug aid members of his own family. Moreover, in a state where medical marijuana dispensaries now legally operate from storefronts in every community, the portion of marijuana consumers partaking illegally is lower, and those breaking the law typically face only a citation.

“At one point, if we were told a mother or father was smoking dope, the state could take their children,” Smith said. “When we would arrest someone for misdemeanor marijuana, they could spend days or weeks in jail. Now, they are typically released on their own recognizance or with a civil penalty or fine.”

As of late September, the Bradford County Jail has nobody in custody on simple drug possession charges. But Smith echoed a concern that even when law enforcement doesn’t crack down on marijuana possession as aggressively as in the past, the worst consequences linger in the air.

”The real punishment is not the fine, where you get charged $250 in most cases,” he said. “The real issue is for that hard worker or college student, an otherwise law-abiding citizen, who gets popped with less than 20 grams. Suddenly when they are up for a promotion, they lose out on a good job. Or they get that college degree but can’t get a job in their chosen career because they have got that on their record. For most people, that’s the most serious thing they encounter, and it haunts them the rest of their life.”

But plenty of officials working in criminal justice say legalizing marijuana will have more serious consequences for society, compromising the abilities of law enforcement and prosecutors.

Jack Campbell, Florida’s 2nd Judicial Circuit State Attorney and President of the Florida Prosecuting Attorneys Association, acknowledged that Florida imprisons fewer people than it once did for marijuana possession, and that anyone who faces such a sentence likely has an abnormal amount to see such a charge.

“However, while we are not sending folks to prison for simple MJ possession, there is a tremendous amount of crime that is secondary to MJ use, sale and possession,” he said in an email to Florida Politics. “Much like alcohol, impaired people kill and hurt each other at disproportionate rates whether you are talking about DUI manslaughter, sexual battery or armed robbery.”

DeSantis said Amendment 3 also reaches well beyond what most would consider small possession

Knowing that drug use can play a role in the commission of violent crimes, Campbell said prosecutors should retain the ability to hold criminals accountable for possession in those instances. Few State Attorneys, if any, want to expend resources on casual drug users, but the ability to press those charges still plays a critical role in delivering justice, Campbell said.

“Prosecutorial discretion is used to make our communities safer. Hence, if we have someone who is peaceful until they use a substance, be it alcohol, MJ, cocaine or meth, we are wanting to separate the offender from the substance that leads to their violence,” Campbell said.

“Legalization will allow greater use and accessibility by those who should not use it. Whether that is children or adults who behave badly while under its effects. It will also make it harder for law enforcement to establish impairment due to the way MJ is metastasized in humans. I anticipate a lot of people being hurt or killed by impaired drivers while we learn the sophistication we have developed with alcohol over the 100 years since prohibition.”

DeSantis suggested that allowing the legal sale of weed won’t stop the drug dealing trade. “Colorado, they have a bigger black market today than before they did the legalization,” he said. “Same with California. So that would absolutely be the case in the state of Florida.”

Smith feels skeptical. He feels certain drug dealers will continue to sell hard drugs, but doubts casual marijuana users will fuel the market.

“When retail marijuana was legalized in other states, we have seen teen use go down,” he said. “It’s not taboo. It’s not fun anymore. When I was a kid it was against the law, but that’s gone.”

And while he counts himself a bourbon man, he sees alcohol and prescription drugs, respectively, fueling more violent crimes and deaths. The Republican Sheriff said he trusts DeSantis, by his account the best Governor in state history, and a GOP-controlled Legislature to regulate the narcotic and educate children on the consequences of abuse.

But he feels law enforcement resources are better expended seeking those peddling opioids, some of which remain legal to produce and obtain originally from a pharmacy.

“Legalizing marijuana is better than a wide open market where dealers don’t give a damn who they sell to,“ he said. “It’s better to regulate so people know what they are buying.”