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Marijuana Legalization and Decriminalization Overview

There's a lot of confusion and misinformation about marijuana legalization and decriminalization. The two concepts are not the same. Law-abiding citizens can find that driving across their state's border can make a big difference. Understanding the law in your state and the states you travel in can help you avoid facing charges of possession of marijuana brought by local law enforcement. Today more than ever, each state has its own unique marijuana laws.

Read on to learn more about the differences between marijuana legalization and decriminalization. We'll update you on states where marijuana possession is legal for personal use and for medical use. We'll also look at states that decriminalize marijuana and how that works differently. Finally, we will review efforts by the federal government to change marijuana policy.

Medical Marijuana Legalization

Marijuana comes from the cannabis plant. Evidence of cannabis use for medicinal purposes goes back thousands of years. The active ingredient in marijuana (cannabis) that produces its psychoactive effect is THC (delta-9-tetrahydrocannabinol).

Since 1996, when California started the trend, more than half of the states and the District of Columbia have legalized medical marijuana. Each state places limits on the number of ounces of marijuana and marijuana plants that someone can own. Some states, including Pennsylvania and Ohio, have a 30-day or 90-day supply limit. It may vary by patient.

Washington legalized cannabis for medical purposes in 1998, before later legalizing recreational marijuana. The statute spells out the compassionate intent behind medical marijuana legalization. It states the limited medical purpose of the law:

Qualifying patients with terminal or debilitating medical conditions who, in the judgment of their health care professionals, may benefit from the medical use of cannabis, shall not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law based solely on their medical use of cannabis, notwithstanding any other provision of law.

Each state decides what medical conditions qualify for medical use of marijuana. Participants in the medical marijuana program must register with the state. They must provide a doctor's diagnosis and prescription before getting a medical marijuana card to use at approved dispensaries. State laws differ on whether a participant can grow some marijuana plants at home.

Often in the legalization of medical marijuana, certain agricultural exceptions for pot growing also appear in the law. This addresses the issue of supply. If it were still illegal to grow marijuana or supply a store with it, then a sick patient would have difficulty obtaining the drug.

At this time, there are some 38 states (plus Washington, D.C.) that have laws permitting medical marijuana use.

Recreational Marijuana Legalization

Voters in Colorado and Washington legalized marijuana for recreational use in November 2012. Both states permit personal use of marijuana by adults aged 21 or older. Colorado was able to establish legal retail marijuana shops in January 2014. Washington was slower to license recreational marijuana shops. It started issuing licenses in July 2014. Other states have since followed their lead. This includes Alaska and Oregon (both in 2014) and California and Massachusetts (both in 2016). At this time, 23 states and the District of Columbia (D.C.) have legalized recreational marijuana possession in small amounts. Each state sets the age for recreational possession and use at 21. These states also have medical marijuana laws.

As the legalization of marijuana gained acceptance, more state legislatures moved to legalization through legislation. Early initiatives were always at the ballot box. At present, the following states have approved legalization by a vote:

Colorado (2012) California (2016) Arizona (2020)
Washington (2012) Nevada (2016) Montana (2020)
District of Columbia (2014) Massachusetts (2016) Missouri (2022)
Alaska (2014) Maine (2016) Maryland (2022)
Oregon (2014) Michigan (2018)  

In the following states, state legislators passed laws granting legalization to recreational use of marijuana:

Vermont (2018) Connecticut (2021)
Illinois (2019) Virginia (2021)
New Jersey (2020) Rhode Island (2022)
New York (2021) Delaware (2023)
New Mexico (2021) Minnesota (2023)

Marijuana legalization means law enforcement cannot arrest or convict you for lawful marijuana use. If you follow state laws as to age, place, and amount for consumption, there should be no hassle. These laws vary as each state sets its limit on the amount of marijuana that is legal to own. You can still get arrested for selling or trafficking marijuana if you aren't following state laws on licensure and taxation. Law enforcement agencies will target unauthorized growers and dealers. The black market in marijuana remains vibrant in states like California and Colorado in spite of legalization.

Other jurisdictions may soon have laws and policies to control the market for marijuana. Advocates for legalization hope this will reduce the black market. Legalization permits consumers to buy the drug for their own use from a safe source.

Marijuana Decriminalization Explained

Decriminalization of marijuana is not the same as legalization of marijuana. Decriminalization refers to states that have repealed or amended their laws to remove marijuana possession in small amounts from the criminal justice system. These states make such possession non-criminal or a minor misdemeanor. The end result may be a fine, but no possible jail sentence. Marijuana remains illegal for possession in greater amounts, though. Those in possession may still face misdemeanor or felony charges, even if the amount they have is for personal use. Unless the state has a medical marijuana program, there is no place to legally buy it or grow it in these states.

Decriminalization is a movement away from the "war on drugs." It reflects society's growing differentiation of marijuana offenses from other crimes. Depending on the jurisdiction, this means that individuals found with small amounts of marijuana for personal consumption may walk away without a criminal record. In states where the offense still appears in official records, first-time offenders may be eligible for expungement of the offense in the future.

Decriminalization can also cause marijuana arrests to decrease. In many states, police treat possession of a small amount of marijuana like a minor traffic violation. The offender receives a summons. They are subject to a fine.

A growing number of states have decriminalized marijuana. For example, in New Hampshire, the state legislature decriminalized possession of marijuana when the amount is under 3/4 of an ounce. Possession of that amount is a civil violation. For a first offense and a second offense, an offender can only face a fine of $100.

While some states engaged in decriminalization first but have since moved on to full legalization, many still have not. In states that have decriminalized some cannabis possession, having larger quantities remains illegal and may bring significant consequences. Possession of large amounts may bring criminal penalties like felony trafficking crimes. Therefore, you still need to be aware of the criminal possession laws in your state.

Federal vs. State Laws

When a federal law and a state law conflict, federal law takes precedence. At present, federal law doesn't permit marijuana sales and usage. It is illegal under the Controlled Substances Act as a Schedule I substance. The government considers drugs listed in Schedule I as having great potential for abuse with no acceptable medical use. Other drugs in that category include heroin and LSD.

Thus, in states where marijuana has been legalized, the state law conflicts with the federal law. In spite of the conflict, the federal government has not tried to shut down state legalization efforts. Since 2012, the Department of Justice, under successive administrations of both parties, has taken a "hands-off" approach. They have let states experiment with legalization for medical and recreational use related to possession of small amounts of marijuana.

If Colorado, Washington, and other states that permit recreational use manage to keep their marijuana retail businesses completely in-state, they may avoid a confrontation with the federal government. That means the marijuana must be grown, sold, used, and taxed all within the state without using any federal land or means of commerce. This prevents retail marijuana businesses from using banks, which are federally regulated.

Federal prohibitions also prevent marijuana businesses from deducting expenses from their federal taxes. Farmers cannot use water from federally managed resources to grow their crops.

The conflict between state and federal marijuana laws is likely to continue. Efforts to pass legislation in Congress to "de-schedule" marijuana or to legalize it have failed to garner enough votes.

In 2022, the Biden Administration asked the Department of Health and Human Services (HHS) to investigate and consider recommending a change in the classification of marijuana from Schedule I to Schedule III under the Controlled Substances Act. In August 2023, HHS made such a recommendation to the Drug Enforcement Agency (DEA). The DEA can issue a proposed rule to make the change.

Given the conflicting views on the issue in Congress, any change may become part of a legal challenge and make its way to the U.S. Supreme Court.

Get Legal Help Understanding Marijuana Laws

The laws about marijuana can be difficult to follow. They can vary depending on your state. There may be conflicts with federal law. If you're trying to open a marijuana-related business, you need legal advice. If you want to understand the laws related to medical or recreational use, you should find an attorney well-versed in this changing area of the law. Consider contacting an experienced drug crime attorney. They can help explain the law and your rights.

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