The legality of marijuana is on the rise. As of August 2023, the recreational use of marijuana is legal in 23 states and Washington, D.C. In 37 states, medicinal use of marijuana is legal for specific patients. Marijuana laws have changed significantly in the last couple of decades and will likely continue to do so.
If you live in a state that legalized medical or recreational marijuana use, it may come as a confusing surprise to learn that possessing, buying, or selling marijuana remains a federal crime. Despite the liberalization of state laws, marijuana continues to be illegal under federal law. Marijuana is a controlled substance under federal law, like cocaine or heroin.
This conflict between state and federal law creates a situation where you could face federal charges for activities allowed by the laws of your home state. Federal agencies are mostly reluctant to charge individuals with cannabis-related crimes unless the drugs are associated with larger organized crime, gang activity, or impaired driving. There are also several ways that federal marijuana laws can affect everyday life decisions, from where you bank to where you live.
Understanding Federal Marijuana Laws
Since the 1930's, federal law has declared the use, sale, or distribution of marijuana illegal. Current federal drug laws appear in the Controlled Substances Act (CSA). Enacted in 1970, the CSA classifies and regulates illegal drugs. It places drugs on a schedule according to their medicinal value and potential for abuse.
Under the CSA, marijuana is a Schedule I controlled substance. This designation identifies drugs that have a high potential for abuse and lack any medical value. Anyone who possesses, grows, markets, or distributes marijuana is likely violating federal laws but, as noted, enforcement is limited at this time.
In 2023, the Department of Health and Human Services (HHS), recommended a change in marijuana's scheduling to the Drug Enforcement Agency (DEA). HHS requested that marijuana become a Schedule III controlled substance. Schedule III drugs have accepted medical use and a low risk of dependence or abuse. The DEA may take months to review the request.
Federal Marijuana Crimes
Federal law prohibits the possession of marijuana. (21 U.S.C. Section 844) Likewise, federal law bans distribution or trafficking of marijuana. Penalties for violating the CSA are significant. A first offense of simple possession of marijuana is a misdemeanor, punishable by up to one year in prison and a minimum fine of $1,000.
If the offender has a prior drug conviction, then the criminal penalties increase. With one prior conviction, an offender will face a mandatory minimum of 15 days incarceration up to 2 years and a fine of $2,500. Penalties for marijuana possession will increase when the case involves a larger amount of marijuana. The larger the amount of marijuana, the more the law presumes the intent is to distribute it.
A person who manufactures, distributes, or possesses marijuana with intent to distribute will also face federal marijuana charges. Under 21 U.S.C. Section 841, possession of 100 kilograms of marijuana or 100 or more plants with an intent to distribute can subject an offender to a prison sentence of five to 40 years. If the actions of the offender cause serious bodily injury or death to someone, the prison time can become 20 years to life along with a fine of up to $5 million.
Other Federal Law Consequences
Someone can run into problems with the CSA even if not directly involved with the marijuana industry. Providing services to a business that operates under state marijuana laws can violate federal law. For example, a janitorial service has a client that operates a dispensary. They might face accusations they are profiting from illegal drug trafficking.
The CSA also makes it illegal to “knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances." This could impact landlords that have tenants involved in a state-permitted marijuana industry. They could be at risk for federal asset forfeiture or other criminal fines.
Attorney General Merrick Garland indicated that he believes federal law enforcement has more important priorities than targeting low-level marijuana crimes. This informal position can help individuals who adhere to their state's cannabis drug laws and remain in their state. Those who possess marijuana for personal use and cross state lines run the risk that law enforcement from the neighboring state or the federal government will pursue criminal charges.
Since 2014, Congress has approved a budget amendment that prohibits the Department of Justice from using its funds to prevent states from implementing their medical marijuana laws. Known as the Rohrabacher-Farr amendment, this piece of legislation must be acted on each year to keep it in place. While this amendment is not permanent, Congress renews it each year. As a result, state medical cannabis laws have suffered little federal interference.
Federal Law and State Ballot Initiatives
State ballot measures and statutes that legalize marijuana for medical or recreational use have no impact on federal law or the CSA. The U.S. Supreme Court has upheld Congress' constitutional authority under the Commerce Clause. The Commerce Clause permits Congress to ban local marijuana production and consumption (see Gonzales v. Raich). The government can regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. Such federal authority pre-empts state action.
So, state law changes will not affect the federal classification of marijuana as a Class I controlled substance. Only the U.S. Congress or the DEA can de-schedule or change the classification of marijuana.
Many states have also taken steps to decriminalize marijuana at the state level. Decriminalization is different than legalization. When a drug is decriminalized, the State removes or reduces criminal penalties.
For example, in several states, the possession of very small amounts of marijuana is either a minor misdemeanor crime or a civil violation. In either case, an offender faces a fine and costs and not jail time. This may prevent first-time offenders from developing a criminal record. Yet, decriminalization of marijuana also does not have an impact on federal offenses that remain on the books.
Common Conflicts With Federal Marijuana Laws
The ongoing conflict with federal law can create everyday problems. The following are common issues to consider:
You could lose your job for your off-the-clock use of marijuana. The Colorado Supreme Court ruled that this type of termination was acceptable in Coats v. Dish Network (2015). That case involved an employee who sued for wrongful termination after testing positive for marijuana.
Most state laws do not permit employers to ban otherwise legal activities as a condition of employment. Under that rationale, if the use of marijuana is legal under state law, an employer could not impose discipline for such use outside of work. Yet, marijuana's illegal status under federal law supports such restrictive policies of employers. So, employers remain able to conduct random drug tests and discipline for any marijuana use among workers.
The Fair Labor Standards Act, along with other federal laws and agency regulations, sets workplace rules. For example, the federal government sets a national minimum wage, maintains child labor laws, and prohibits forms of discrimination. Employers must maintain an environment that is consistent with both state and federal rules. According to federal laws, marijuana is illegal. So, businesses can prohibit workers from using it without penalty.
Conflicting laws also create problems in some professions. Doctors cannot legally prescribe marijuana since it is a Schedule I drug under the CSA. Instead, they "recommend" it in some cases. A few doctors have lost their licenses or suffered reprimands by state medical boards for marijuana issues. Stricter punishment is also possible in certain cases.
Lawyers also risk their licenses when advising clients involved in the marijuana industry. Others may accuse them of providing technical advice on how to violate federal drug laws. The American Bar Association provides guidance so lawyers can avoid professional ethics violations. Lawyers should inform their clients of potential federal violations and consequences.
Renters could face eviction when they use marijuana in a state where such use is legal. If their lease prohibits marijuana use, the status of the drug under state law does not matter. Since federal law categorizes marijuana as a controlled substance, a landlord can prohibit it on their property. If you are a Section 8 or other federal housing aid recipient, you are not allowed to use marijuana. Violations can lead to a loss of benefits or eviction.
If you work in the marijuana industry, you are likely familiar with Internal Revenue Code Section 280E. This law prohibits marijuana businesses from deducting ordinary business expenses such as marketing, training, and transportation. However, these businesses can deduct the cost of goods sold. Some accounting practices may seek legal avenues to incorporate such expenses into the cost of goods.
Right to Bear Arms
There are conflicts in the federal circuit courts on marijuana use and citizens' rights to purchase or own firearms. In 2016, the 9th Circuit Court of Appeals upheld the federal law banning gun purchases by an "unlawful user and/or an addict of any controlled substance." The federal gun ban, located at 18 U.S.C. Section 922 (g), prohibits possession and ownership of a firearm or ammunition by an illegal drug user. Someone who violates the ban can spend time in federal prison.
In that case, the plaintiff had a medical marijuana card in a state where such medical use was legal. She wanted to purchase a firearm. The court ruled that she could not. The federal law took precedence. It rejected the plaintiff's claims that the federal ban violated the Second Amendment. The court found the law did not place a severe burden on her right to defend herself and it had a rational goal of reducing gun violence.
In contrast, the 5th Circuit Court of Appeals in U.S. v Daniels (2023), found that the same federal gun ban violated the Second Amendment right to bear arms. The Court's decision took into account the intervening Supreme Court case of New York State Rifle and Pistol Association v. Bruen (2022).
In Bruen, the Supreme Court struck down a New York state law that required a showing of "proper cause" for the issuance of a public concealed carry permit. The Court concluded that citizens have a right to carry a pistol in public under the Second Amendment and that states could set objective criteria for concealed carry laws, but not subjective criteria like the New York law.
It held that when a state law burdens the right to bear arms, the state must show its regulation is consistent with the historical tradition of firearm regulation in the U.S.
Under such a historical review, the 5th Circuit concluded that the firearms ban for marijuana users in the case before it could not stand. It threw out the conviction of the defendant who admitted to using marijuana but was not drug-tested to show he was under the influence at the time of arrest.
The State argued that at the nation's founding, there were citizens banned from having guns due to their dangerousness. The court found that the federal law as applied to Daniels violated the Second Amendment. It stressed there was no group similar to marijuana users that were dangerous at the founding of the nation who lost their right to bear arms.
Many banks and credit card companies are reluctant to provide accounts to participants in the marijuana industry. They fear prosecution under the CSA. The U.S. Department of Treasury issued guidelines in 2014 on how financial companies can service the industry without violating federal money laundering laws.
Confused About State and Federal Marijuana Laws? An Attorney Can Help
A federal drug charge is serious. Punishment for those found guilty can be severe. People from various walks of life could face federal charges despite what they may think their state allows. The conflict in state and federal law makes it essential to seek good legal advice.
Federal courts will not recognize state medical or recreational marijuana laws as a defense. If you are being investigated for a marijuana-related offense, it's important to understand the law and your rights. Consider talking with a drug crimes attorney today.