Marijuana Legalization vs. Decriminalization: What Are the Legal Differences?

The legalization and decriminalization of marijuana are relatively new concepts in the United States. But countries like Portugal and Holland have long addressed drug use as a public health matter rather than a crime.

Some argue this leads to higher rates of substance use disorders and other negative mental health outcomes. But many studies point to its various social benefits like reducing the burden on our criminal justice system. Regardless of your position, it’s important to understand the implications of marijuana legalization and decriminalization.

Current state regulations vary widely. This can make the legal landscape surrounding marijuana tricky to navigate. Its criminalization at the federal level only adds to the confusion. If you’re seeking clarity or have bumped up against these laws, consider consulting an experienced cannabis law attorney about your specific situation.

In this article, we’ll review some basic principles you’ll want to keep in mind. Let’s start with some background information about the legalization and decriminalization of marijuana.

What Is Legalization and Decriminalization?

Marijuana legalization and marijuana decriminalization are two different approaches to regulating the use and possession of marijuana. Understanding the differences between them is important, as they have distinct legal implications.

When discussing legalization and decriminalization laws, we’ll use the terms “cannabis” and “marijuana” interchangeably. Technically, however, cannabis is the general term for the plant species. Marijuana specifically refers to its psychoactive form (THC) used for recreational or medicinal purposes.

Federal Marijuana Law

While many states have moved towards legalization and decriminalization, marijuana is currently criminalized at the federal level. The federal Drug Enforcement Agency (DEA) classifies marijuana as a Schedule I drug under the Controlled Substances Act (CSA). This means the DEA considers it to have:

• A high potential for substance abuse
• No accepted medical use
• A lack of accepted safety for use under medical supervision

Despite state-level legalization/decriminalization for medical or recreational use, federal law enforcement agencies can still prosecute individuals and businesses for marijuana-related activities. This creates ongoing legal and regulatory challenges.

Lawmakers have introduced several bills to reform federal marijuana laws. Thus far, however, these efforts have not resulted in a change to the federal criminalization of marijuana.

States that have legalized/decriminalized marijuana for medical or recreational use operate under their own laws. But they must still navigate the complexities of federal prohibition. This can affect banking, taxation, and interstate commerce related to marijuana.

State Legalization

Legalization of marijuana means that state law allows the use, possession, and sometimes the sale of marijuana. We examine some practical effects of legalization below.

Regulation and Taxation

The government can regulate and tax the production, distribution, and sale of legalized marijuana. Legalization means specific laws and guidelines dictate how marijuana can be grown, sold, and used.

Legal Market

Cannabis legalization creates a legal market for marijuana. It doesn’t completely eliminate the black market. But it can help reduce illegal sales and ensure the product is safe and regulated. For example, states that have legalized marijuana for recreational use generally allow adults to buy it from dispensaries.

Criminal Penalties

Legalization removes criminal sanctions and penalties for cannabis use and possession of marijuana. In states that have legalized marijuana, people can use it without fear of arrest or criminal charges, as long as they follow state regulations.

Medical Use

Many states have legalized marijuana for medical purposes. This means patients with certain conditions can use medical marijuana to help manage their symptoms, usually with a doctor’s prescription.

State Decriminalization

Decriminalization of marijuana is different from legalization. Decriminalization means the removal of marijuana use/possession (in small amounts) from the criminal justice system.

This means that it’s still illegal. But the penalties for possession or use of marijuana are less severe. A discussion of some real-life implications of decriminalization follows.

Reduced Penalties

Under cannabis decriminalization, marijuana possession in small amounts is treated more like a minor traffic violation than a felony or misdemeanor. Instead of jail time, people might face civil fines or penalties.

No Legal Market

Unlike legalization, decriminalization doesn’t create a legal market for marijuana. The sale and production of marijuana remain illegal and unregulated.

Focus On Personal Use

Decriminalization typically applies to small amounts of marijuana meant for personal use. Larger amounts or intent to sell can still result in criminal charges.

Law Enforcement

Decriminalization often leads to changes in how law enforcement handles marijuana cases. Police may prioritize other crimes over small-scale drug possession.

Criminal Records

Decriminalization of marijuana often involves reducing or eliminating criminal records for past minor marijuana offenses. This may help expungement or sealing of records.

Understanding these differences can help people navigate the laws in their state and avoid legal trouble. Each state has its own approach to marijuana laws. So, it’s important to know the specific regulations where you live.

Can a State Legalize Medical Marijuana and Criminalize Recreational Use?

Yes. States can choose to create a system that supports medical use while maintaining strict penalties for recreational use. The legal frameworks for medical and recreational marijuana are separate.

States that legalize medical marijuana allow patients with certain medical conditions to use marijuana for treatment. This usually requires a doctor’s recommendation or prescription. The state sets up a regulatory framework to control the cultivation, distribution, and use of medical marijuana.

These states can still enforce laws that make recreational use illegal. This means that while patients can use marijuana for medical purposes, anyone using it without a medical reason can still face criminal charges.

Several states fall into this category, including:

• Alabama
• Arkansas
• Florida
• Georgia
• Hawaii
• Louisiana
• Mississippi
• North Dakota
• Ohio
• Pennsylvania
• South Carolina
• Texas
• Utah
• West Virginia
• Wisconsin
• Wyoming

In Georgia, however, legal medical marijuana is limited to low-THC (less than 5%) oil for specific medical conditions.

Legal Medical and Recreational Marijuana

One of the most common questions raised is whether a person can travel between states where marijuana is legal. Before we answer that question, let’s review which states those might be.

Twenty-six states, plus Washington, D.C., have legalized medical and recreational marijuana. They are:

• Alaska
• Arizona
• California
• Colorado
• Connecticut
• Delaware
• Illinois
• Maine
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Montana
• Nevada
• New Jersey
• New Mexico
• New York
• Oregon
• Rhode Island
• Vermont
• Virginia
• Washington
• Missouri
• Oklahoma
• South Dakota
• New Hampshire

This allows increased access for patients and consumers in these jurisdictions.

Is It Legal to Travel With Marijuana Between States That Have Legalized It?

No. It’s still illegal to travel between any states (including the District of Columbia) with marijuana.

This is because marijuana remains an illegal drug at the federal level.

Air Travel

The Transportation Security Administration (TSA) operates under federal jurisdiction. TSA officers are not specifically looking for marijuana. But if they find it during security screening, they must report it to local law enforcement.

Responses from local law enforcement can vary based on state laws. In states where marijuana is legal, authorities may allow travelers to dispose of the substance without further consequences.

Some airports have installed "amnesty boxes" for passengers to discard cannabis products before security checkpoints. In states where marijuana is legal, airports may have specific marijuana policies about possession within state limits.

However, once passengers pass through TSA checkpoints, federal law takes precedence.

The TSA’s primary focus is on security threats, not actively searching for drugs. But any illegal substances discovered must be handled according to federal regulations.

Traveling with medical marijuana is subject to the same federal restrictions as recreational cannabis. Even with a valid medical prescription, passengers aren’t permitted to bring marijuana through TSA checkpoints.

Other Interstate Travel

Crossing state lines, whether by boat, car, train, or any other means is, by definition, interstate travel. Federal law governs interstate travel. Thus, transporting marijuana across state lines is illegal.

This is true even if traveling between two states that have legalized recreational and medical marijuana. The travel is still technically subject to federal jurisdiction.

Decriminalization Without Legalization

Still, it’s important to understand the laws in your own state. Not surprisingly, several states have decriminalized marijuana without fully legalizing it. They include:

• Connecticut
• Delaware
• Maryland
• Mississippi
• Missouri
• Nebraska
• New York
• North Carolina
• Ohio
• Rhode Island
• Virginia

Of these states that have decriminalized marijuana, all except North Carolina have legalized medical marijuana.

Getting Legal Advice

Needless to say, the drug policies that may affect your specific situation aren’t always clear. State marijuana laws have seen a massive departure from President Nixon’s “war on drugs." Still, political winds can significantly influence this area. The second Trump administration inherited President Biden’s initiative to remove marijuana from the CSA Schedule I list. But uncertainty about its legalization and decriminalization remains.

A credible cannabis law attorney can help you understand what this means for you. You can speak with them under the protection of attorney-client privilege. That way, you can determine the best way to proceed. You may have more options than you think.

FindLaw’s directory of cannabis law attorneys can make connecting with local experts easy. Just click on your state for ratings and contact information of lawyers licensed and experienced in the cannabis laws of your state. You can also narrow your search results by city. Either way, reach out to someone who can give you the peace of mind that comes with legal guidanc