Marijuana Vote: The Legal History

The legalization of marijuana has been the center of debate for years. Proponents argue legalization creates revenue for state and local governments and is in the interest of public health. Those who oppose legalization raise concerns about its addictive nature and health impact.

The marijuana legislative history is long and complex, mainly due to the lack of consensus on whether it should be legal or not. This article offers a general overview of the legal history of cannabis.

History of Federal Marijuana Laws

In 1937, the federal government banned the use of cannabis when the Senate passed the "Marihuana" Tax Act (sic). Shortly after passing, however, the Supreme Court held in Leary v. United States that the Marihuana Tax Act violated the Fifth Amendment right against self-incrimination.

 Marijuana is a Schedule I drug, putting it among the highest-regulated drugs. As a result, the act imposed criminal penalties on the use of marijuana and marijuana possession.

That same year, the National Organization for the Reform of Marijuana Legislation (NORML) formed. NORML played a major role in the cannabis legalization movement. Today, ballot initiatives helped state legalization of marijuana. Lobbying and activism for cannabis legalization aided these widespread efforts.

In 2018, the Biden administration enacted the 2018 Farm Bill. The bill legalized hemp but did not change the legal status of marijuana. Currently, marijuana remains federally illegal. However, the prosecution of federal marijuana offenses remains relatively low.

In December 2022, President Biden signed into law the Medical Marijuana and Cannabidiol Research Expansion Act. The Act allows federally funded research facilities and universities to research the potential harms and benefits of marijuana. It also allows researchers to study the effects that marijuana has on fine motor skills and adolescents. If the research results are positive, the federal government could potentially consider reclassifying marijuana's status as a Schedule 1 drug in the Controlled Substances Act.

State Marijuana Laws

Although marijuana is still illegal under federal law, state marijuana policies and cannabis laws continue to evolve. Every state has laws on drug offenses. More states are decriminalizing and legalizing both medical and recreational marijuana products.

Medical Marijuana Laws

California was the first state to legalize the medical use of cannabis for patients with severe illness through the Compassionate Use Act of 1996. Maine, Washington, Oregon, Alaska, and D.C. then legalized medical marijuana in the 1990s.

As of April 2023, 38 states and Washington, D.C. have passed laws that either legalize or decriminalize medical marijuana. Marijuana possession for personal use can result in a state misdemeanor or even a felony. The use of Marinol, a medication that uses synthetic THC to stop pain in patients, is not the same as personal use.

Recreational Marijuana Laws by State

Colorado legalized recreational marijuana for the first time in 2012. Recreational use of small amounts of marijuana is now legal in twenty-two states and the District of Columbia.

In addition to making marijuana legal, some states like Illinois also included a criminal justice component in their bill, expunging marijuana conviction records of hundreds of thousands of Illinois residents.

Medical and Recreational Marijuana Laws by State

Medical Marijuana by State

Each state has its own medical marijuana program that allows the use of marijuana for specific medical purposes. Medical marijuana laws vary drastically by state. Make sure to read your state's medical marijuana requirements carefully.

Medical cannabis or adult use cannabis is legal in the following states:

• Alabama
• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Connecticut
• Delaware
• District of Columbia
• Florida
• Hawaii
• Illinois
• Louisiana
• Maine
• Maryland
• Massachusetts
• Michigan
• Missouri
• Montana
• Nevada
• New Hampshire
• New Jersey
• New Mexico
• New York
• North Dakota
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• Utah
• Vermont
• Virginia
• Washington

Recreational Marijuana by State

Lawmakers in these states have legalized the use of marijuana for recreational purposes:

• Alaska
• Arizona
• California
• Colorado
• Connecticut
• District of Columbia
• Delaware
• Illinois
• Maine
• Maryland
• Massachusetts
• Michigan
• Missouri
• Montana
• Nevada
• New Hampshire
• New Jersey
• New Mexico
• New York
• Oregon
• Rhode Island
• Vermont
• Virginia
• Washington

Risk of Conviction Despite State Law Compliance

The Supreme Court in Gonzales v. Raich held that marijuana business affects interstate commerce. Interstate commerce is business done between states instead of within one state. This case meant Congress can regulate marijuana businesses that happen between states. Even state marijuana law compliant individuals and businesses risk federal law enforcement conviction.

Even though federal law preempts state law, federal law enforcement agencies have the discretion to prosecute cases. Until late 2017, the Justice Department took a hands-off approach to marijuana convictions ("Cole Memo"). It allowed state laws to regulate and address marijuana-related activity.

In January 2018, former Attorney General Jeff Sessions revoked previous memos. He instructed the prosecution of marijuana-related offenses even in states where it was legal ("Sessions Memo"). As of March 01, 2023, Attorney General Merrick Garland is re-examining the Department of Justice policy on marijuana use. Despite state laws, cannabis users and retailers may face federal prosecution.

Consult an Attorney to Better Understand Marijuana Laws

Every state has its own laws on medical and recreational marijuana. These laws vary significantly depending on state and local laws. Until political parties agree on decriminalization, cannabis remains illegal under federal law. Therefore, additional risks for new cannabis business owners exist. If you want to better understand the laws or if you are thinking of opening a marijuana dispensary, consult a small business attorney experienced in marijuana laws. It would be a wise investment.