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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, and understanding the law in your state and states you travel in can help you avoid accidentally getting ticketed or arrested for possession of marijuana. You can find your state marijuana laws here. Read on to learn more about the differences between marijuana legalization and decriminalization.

Recreational Marijuana Legalization

Famously, voters in Colorado and Washington legalized marijuana in November 2012. Both states only permit personal recreational use of marijuana by adults 21 or older. Colorado was able to implement legal retail marijuana shops since January 1, 2014. Washington was slower to license recreational marijuana shops, starting to issue licenses in July 2014.

Basically, the legalization of marijuana means you can't be arrested, ticketed, or convicted for using marijuana, if you follow the state laws as to age, place, and amount for consumption. However, you can still get arrested for selling or trafficking marijuana if you aren’t following state laws on licensure and taxation. For example, black market marijuana is still sold in Colorado despite legalization and is still illegal.

Other states, including Alaska, California, New York, and Oregon may soon also have laws and policies to legally control the market for marijuana, so consumers can buy it for their own use from a safe legal source.

Medical Marijuana Legalization

Marijuana has been used for centuries for medicinal purposes. Since 1996 when California started the trend, almost half of the states and DC have legalized medical marijuana. Typically, there are limits placed on the number of ounces of marijuana and marijuana plants that can be owned. A few states, including Connecticut and Massachusetts, have a 30-day or 60-day supply limit, which can vary by patient.

Washington legalized marijuana for medical purposes in 1998, before legalizing recreational marijuana. The statute clearly spells out the compassionate intent behind medical marijuana legalization and 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. 

Often in the legalization of medical marijuana, certain agricultural exceptions for pot growing are included in the law. This is important because if it was still illegal to grow marijuana or supply a store with it, then a sick patient would have difficulty obtaining the drug. As an example, Illinois is in the process of developing a medical cannabis pilot program, which includes cultivation licenses for farmers. For more information on medical marijuana, read FindLaw's article on the subject.

Marijuana Decriminalization Explained

To be clear, decriminalization of marijuana is not the same as legalization of marijuana. Decriminalization means that a state repealed or amended its laws to make certain acts criminal, but no longer subject to prosecution. In the marijuana context, this means individuals caught with small amounts of marijuana for personal consumption won’t be prosecuted and won’t subsequently receive a criminal record or a jail sentence. In many states, possession of small amounts of marijuana is treated like a minor traffic violation. States that have decriminalized marijuana include Alaska, California, New York, Minnesota, North Carolina, Oregon, and much of the Northeast.

California's decriminalization statute is a good example of how possession of small amounts of marijuana can result in an infraction and fine, but not in criminal consequences: 

Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).

Only about a third of states have decriminalized marijuana. Even in these decriminalized states, possessing larger quantities or selling marijuana have significant potential penalties. Therefore, you still need to be aware of the criminal laws in your state. If you are arrested for marijuana use or distribution, you should consult a qualified criminal defense attorney.

Federal vs. State Laws

When federal law and state law conflict, the federal law trumps. Federal law doesn’t permit marijuana sale and usage because it is illegal under the Controlled Substance Act. In states where marijuana has been legalized for recreational purposes, the state law conflict with federal law.

If Colorado and Washington mange to keep their marijuana retail businesses completely in-state, it may be legal. 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 the retail marijuana businesses from using banks, which are federally regulated. It also prevents marijuana businesses from deducting business expenses on their federal income taxes. This also prevent farmers from using water from federally managed resources.

The conflict between state and federal marijuana laws is likely to continue and ultimately require resolution, possibly in a decision by the Supreme Court.

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