If you live in a state that has legalized marijuana for medical or recreational use, you may be surprised to learn that you will still be in violation of federal law when you possess, buy, or sell cannabis. You can be charged with a federal crime for actions allowed under the laws of your state. The fact that marijuana is legal under state law cannot be raised as a valid defense to federal drug charges related to the sale, use, or possession of marijuana.
The federal Controlled Substances Act (CSA) classifies drugs into five “schedules” based on factors such as their potential for abuse. Those drugs considered to pose a high potential for dependency, but with no accepted medical use, are classified as Schedule 1. Although several studies have shown marijuana to have medical benefits, it nonetheless remains classified as a Schedule 1 drug, along with heroin and LSD. As discussed below, whether federal marijuana laws are enforced depends on the stance of each administration. The current Biden administration discourages enforcement of federal marijuana laws and is taking steps to decriminalize possession and use of marijuana at the federal level. At the time of writing, the following laws remain on the books:
Possession. A first offense of possession of marijuana of any amount is considered a misdemeanor and can result in imprisonment up to one year and a minimum fine of $1,000. For a second conviction, the penalty increases to a mandatory minimum sentence of 15 days, up to a maximum of two years, and a fine of up to $2,500. Any subsequent conviction for possession results in a mandatory minimum sentence of 90 days, up to a maximum of three years, and a fine of up to $5,000.
Distribution. The distribution of less than 50 kilograms of marijuana is classified as a felony and is punishable by five years in prison and a fine up to $250,000. If an individual distributes 50-99 kg, the penalty increases to 20 years’ imprisonment and a fine of up to $1 million. Conviction for the distribution of 100-999 kg will result in 5-40 years’ imprisonment and a fine of up to $2 million. Conviction for distribution of 1,000 plants or 1,000 kilograms can result in an additional 10 years added to a sentence, the possibility of life imprisonment, and a fine of anywhere from $4-10 million.
Distribution to minors. The distribution of more than 5 grams of marijuana to a minor doubles the possible penalties. Possible penalties also are doubled for distribution within 1,000 feet of a playground, school, or public housing, or within 100 feet of a public pool, video arcade, or youth center.
Paraphernalia. The unauthorized sale or importation of drug paraphernalia carries a punishment of up to three years’ imprisonment. The CSA defines drug paraphernalia as equipment that is used to produce, conceal, and consume illicit drugs. Some items, such as water pipes, vaporizers, bongs, and bowls can be sold legally anywhere as long as the sale is “for tobacco use only;” however, once a new pipe or bong is used with marijuana, it becomes subject to the prohibitions of federal law.
In states where medical or recreational use of marijuana is legalized, state law conflicts with federal law. As noted above, when federal and state drug laws are in conflict, federal law always trumps state law; however, at present, enforcement of federal law depends on the administration in power. The Obama administration discouraged the enforcement of federal laws in states where marijuana is legal. President Trump went back to enforcing those laws. Currently, the Biden Administration again discourages enforcement of federal laws criminalizing individual use and possession and has issued a blanket pardon of all persons convicted of simple possession of marijuana under federal law.
Medical marijuana. The term “medical marijuana” refers to the cultivation, use, or possession of marijuana for medical reasons. There is a debate concerning medical use, but an increasing number of states (listed below) have legalized the use of medical marijuana, removing criminal penalties for prescribing doctors and patients. Reform legislation has been introduced that would effectively end federal prohibition of medical marijuana, allowing industries to take steps toward research improvement. For example, if passed, The Compassionate Access, Research Expansion and Respect States (CARES) Act would amend the Controlled Substances Act by decreasing marijuana from a Schedule I to a Schedule II drug, easing restrictions on researchers, and allowing states to set their own policies for medical marijuana.
Recreational use debate. Recreational use of marijuana means that the drug is used without any medical justification. There is an ongoing debate about whether the cultivation, sale, and use of marijuana should be legalized for recreational use. Among the arguments for legalizing recreational use of marijuana are increased tax revenue and the possibility of marijuana being used to alleviate pain associated with certain medical conditions, thereby replacing the use of toxic and addictive opioids. Critics, however, object to the possibility of increased use of marijuana by younger people they believe might result from legalization.
To date, 22 states have legalized marijuana for recreational use by adults. They are listed below.
Resources. The 38 states (plus the District of Columbia) that have legalized marijuana for adult medical or recreational use are listed below. Although each of the states listed has legalized usage, it is important to keep in mind that the laws vary with regard to allowable usage and possession. Use the following links to read more about marijuana laws in your state.
*These eight states have decriminalized marijuana, which means no one can be arrested or receive a criminal record for possession of small amounts of marijuana. However, in these states, it is still illegal to sell marijuana that is not prescribed for medical use, which means recreational users have no legal source for the drug.