The recreational use of marijuana is legal in 16 states and Washington, D.C. In 19 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 is still a federal crime. The problem is that, despite the liberalization of state laws across the country, federal law still treats marijuana as a controlled substance, just like cocaine or heroin.
This conflict between state and federal law creates a situation where you could be charged with a federal crime for activities that are 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 are codified in the Controlled Substances Act (CSA). The CSA classifies and regulates illegal drugs and places listed 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 is reserved for drugs that have a high potential for abuse, lack any medical value, and cannot be safely prescribed. Anyone growing, marketing, or distributing marijuana is likely violating multiple federal laws (but, as noted, enforcement is unlikely).
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 and thus be subject to prosecution. If someone runs a janitorial service, for example, and has a client that operates a dispensary, they might be 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." Landlords that have tenants involved in state-permitted marijuana industry, therefore, risk federal asset forfeiture or other criminal fines.
Penalties for violating the CSA do not just target growers and distributors. Simple possession with no intent to distribute is a misdemeanor, punishable by up to one year in prison and a minimum fine of $1,000. Individuals involved in marijuana businesses could receive up to five years in prison and fines of up to $250,000. Penalties for drug crimes generally increase when larger quantities of drugs are involved.
Recently, Attorney General Merrick Garland indicated that he believes the federal government has more important priorities than targeting low-level drug crimes. This unofficial stance only helps individuals who adhere to their state's drug laws and do not cross state lines.
Since 2014, Congress has approved a budget amendment that prohibits the Department of Justice from using funds to prevent state from implementing their medical marijuana laws. Known as the Rohrabacher-Farr or CJS amendment, this piece of legislation must be acted on each year to keep it in place. While this amendment is not permanent, it does routinely get renewed each year.
Federal Law and State Ballot Initiatives
State ballot measures to legalize marijuana have no impact on federal law or the CSA. In 2005, Congress' constitutional authority under the Commerce Clause to ban local marijuana production and consumption was affirmed by the Supreme Court in Gonzales v. Raich — despite state legalization.
Under the Commerce Clause, Congress has the power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. This is the reason that no state law will affect the federal classification of marijuana as a Class I controlled substance.
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 be fired from your job for your off-the-clock use of marijuana. The Colorado Supreme Court ruled that this type of termination was allowed in Coats v. Dish Network (2015). That case involved an employee who sued for wrongful termination after testing positive for marijuana.
State employment laws generally find it unlawful to prohibit legal activities as a condition of employment. In many states, the use of marijuana is legal under state law, but employers in those states can still ban 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 countrywide must maintain an environment that is consistent with both state and federal rules. According to federal laws, marijuana is illegal. Businesses, therefore, can prohibit its 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 merely "recommend" it in some cases.) A few doctors have lost their licenses or been reprimanded 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, since they are technically providing advice on how to violate federal drug laws. The American Bar Association provides guidance to prevent lawyers from avoiding professional ethics violations by informing their clients of the potential federal violation and consequences.
Renters could face eviction even when their marijuana use is compliant with their state's law if illicit drugs are prohibited in the lease. Since federal law categorizes marijuana is 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. These businesses can deduct cost of goods sold, however, so shrewd accounting practices are often used to incorporate many expenses into the cost of goods.
Right to Bear Arms
The 9th U.S. Circuit Court of Appeals held that if you have a medical marijuana card you can be prevented from buying a gun. In 2016, the court held this ban on gun ownership did not violate the Second Amendment since federal law prohibits gun purchases by an "unlawful user and/or an addict of any controlled substance."
Many banks and credit card companies are reluctant to provide accounts to participants in the marijuana industry for fear of 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 is frequently severe and life-changing. People from various walks of life could find themselves facing stiff federal charges despite what they may think their state allows.
Federal courts will not recognize state medical or recreational marijuana laws as a defense to possession or cultivation. If you are being investigated for a marijuana-related offense, it's important to understand the law and your rights. Get in touch with a drug crimes attorney today.