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Legal Topics Criminal Law and Police General Criminal Law Drug Crimes

State Marijuana Laws

State marijuana laws are becoming increasingly liberal. In November 1996, California became the first state to legalize marijuana for medicinal purposes. Currently, as of May 2017, 44 states have legalized marijuana for medicinal purposes. Some states have decriminalized the possession of small amounts of marijuana (charging civil fines instead of imposing jail time). And, eight states and the District of Columbia have legalized the adult use of recreational marijuana.

Federal Marijuana Laws

However, federal law still prohibits all use, sale, and cultivation of marijuana. Under federal law, any possession of marijuana is a crime punishable by up to a year in jail and a $1,000 fine. And, the federal government imposes harsh penalties for the sale and cultivation of marijuana-up to a lifetime sentence under certain circumstances.

Marijuana Dispensaries

Marijuana dispensaries are places where consumers can purchase either medicinal or recreational marijuana. In 2011 and 2012, the federal government cracked down on these retailers, resulting in the closure of many marijuana dispensaries.

However, the federal government issued the Cole Memo in 2013, encouraging federal law enforcement to focus on marijuana operations that:

Distributed to minors,

Were gang or cartel affiliated,

Were covers for illegal activity,

Used violence or firearms in their operations, or

Grew marijuana on public lands.

The Cole Memo also encouraged enforcement in cases involving impaired driving, public health concerns, and use or possession on federal property. Under President Obama, federal authorities rarely filed charges involving legalized marijuana.

Conflict between State Law and Federal Law

Unfortunately, a federal law will always preempt (or trump) a state law. In other words, even if marijuana use, cultivation, or distribution is legal in your state, you can still face serious federal charges. However, federal authorities typically focus on high profile and high-volume distributors and growers.

It is unclear how the current administration will approach marijuana policy. Attorney General Jeff Sessions has historically favored strict enforcement of the federal laws. However, other administration members have hinted that marijuana enforcement is not a top priority at this time.

If you are involved in state-licensed marijuana cultivation or distribution, you should seriously consider speaking with a criminal defense lawyer. A lawyer can help you prepare for possible criminal charges and protect your rights.

Do I Need a Lawyer?

If you have encountered criminal charges for possession or distribution of marijuana, you should contact an experienced criminal defense attorney immediately. Both state and federal punishments for the illegal possession or use of marijuana can be very severe and have long-lasting consequences. A criminal defense attorney can help you understand your rights and can represent you during a trial.

Last Modified: 09-12-2017 10:37 AM PDT

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state and federal law for the illegal possession of marijuana

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State and Federal Law for the Illegal Possession of Marijuana

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Legal Topics Criminal Law and Police General Criminal Law Drug Crimes State marijuana laws are becoming increasingly liberal. In November 1996, California became the first state to legalize marijuana for medicinal purposes. Currently, as of May 2017, 44 states have legalized marijuana for medicinal purposes.

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- Federalism is a system of government in which entities such as states or provinces share power with a national government.
- The distribution of power in an organization (such as a government) between a central authority and the constituent units

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How did the use of recreational marijuana become an issue of Federalism?

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How did the use of recreational marijuana become an issue of Federalism?

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Marijuana is legal in some states , 29 for medical use. At least 12 more states have effectively decriminalized possession of marijuana in small amounts. Yet marijuana use and possession remains illegal under federal law, even in small amounts or for medical purposes.

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What are the main points for this to remain a state issue? a federal issue? 

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What are the main points for this to remain a state issue? a federal issue? 

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State:
-even if marijuana use, cultivation, or distribution is legal in your state, you can still face serious federal charges
-charging civil fines instead of imposing jail time
-have legalized marijuana for medicinal purposes
Federal:
-can claim certain tax deductions from the business.
-typically focus on high profile and high-volume distributors and growers.
-prohibits all use, sale, and cultivation of marijuana
-federal government imposes harsh penalties for the sale and cultivation of marijuana—up to a lifetime sentence under certain circumstances

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Analysis- What side of the argument do you most agree with? Defend your argument with facts from your research. 

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Analysis- What side of the argument do you most agree with? Defend your argument with facts from your research. 

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I agree with it being the state issue because the state could decide and regulate the recreation of marijuana. They can enforce laws and the punishments wouldn't be so hard as the federal. Recreational marijuana can bring in a growing business and help out with issues that the state needs to pay, etc.

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During the campaign, Donald Trump endorsed medical marijuana and said pot legalization "should be a state issue, state-by-state." Attorney General Jeff Sessions, on the other hand, is a fierce opponent of marijuana and has opposed measures that would limit the federal government's ability to interfere with state decriminalization efforts. Last month, Sessions reiterated the federal government's authority to enforce federal drug laws "regardless of state law," and some fear he will resist congressional efforts to protect medical marijuana from federal drug laws. Yet Sessions is not the greatest threat to continuing state-level marijuana reform efforts.

Lawmakers and citizen initiatives have successfully reformed marijuana laws in a majority of states. Twenty-nine states allow for the medical use of marijuana, according to the National Conference of State Legislatures. Eight have legalized marijuana possession and use altogether, allowing for recreational use. At least a dozen more states have effectively decriminalized possession of marijuana in small amounts. Yet marijuana use and possession remains illegal under federal law, even in small amounts or for medical purposes.

As a practical matter, the federal government has neither the interest in policing nor the ability to police low-level infractions of federal drug laws. Limits on federal law enforcement resources mean that the Drug Enforcement Administration focuses its efforts on larger dealing and trafficking operations. This policy approach was formalized during the Obama administration in the Cole Memorandum, which clarified that the Justice Department has little interest in going after marijuana possession or sale that is compliant with state law and is not linked to interstate trafficking or sales to minors. Nonetheless, the federal prohibition casts a shadow over marijuana-related businesses and activities that have been legalized under state law.

To protect state-level reforms, Congress has enacted appropriations riders that bar the DEA from spending funds to "interfere" with state laws authorizing the cultivation, use, possession or distribution of marijuana for medical purposes. Despite Sessions's opposition, such a rider was included in the most recent spending bill that provides funding through Sept. 30.

The Appropriations Rider sends an important signal that Congress wants to allow states to allow medical marijuana, but it only goes so far. While the rider limits what the DEA can do, and was successfully invoked as a defense against prosecution in a case before the U.S. Court of Appeals for the 9th Circuit, marijuana use and possession remain illegal under federal law, and this has far-reaching implications. Marijuana reform advocates spend lots of time worrying that Sessions will find a way around the appropriations rider or depart from the set of priorities outlined in the Cole Memo. This threat is real, but other threats are greater.

The fact that marijuana possession remains illegal under federal law has far-reaching implications whether or not the DEA can raid medical marijuana dispensaries. For one thing, it means that banks cannot lawfully service marijuana businesses, as doing so means servicing a criminal enterprise. The result is that marijuana sales are conducted almost exclusively on a cash basis. (For more on the banking angle, see this excellent paper by Alabama law professor Julie Hill.) This cannot be fixed through an appropriations rider.

A bigger potential threat comes from the fact that marijuana possession and distribution are predicate offenses under the Racketeer Influenced and Corrupt Organizations Act (RICO). This means that those who produce or sell marijuana are potentially subject to civil RICO suits, whether or not such activities are legal under state law. So held the U.S. Court of Appeals for the 10th Circuit earlier this year. A federal judge once described RICO as "the monster that ate jurisprudence." Barring real reform at the federal level, it could be the monster that ate marijuana federalism, too. Here again, an appropriations rider is insufficient.

The only way to protect state-level marijuana reform efforts is to change federal law, either by ending federal marijuana prohibition or expressly allowing state reforms to proceed. Outright federal legalization of marijuana is unlikely - and might not be a good idea insofar as state-level reform efforts generate useful information about the best way for reforms to occur. Allowing different states to adopt different policies encourages policy experimentation and produces knowledge about the pros and cons of different legal regimes.

The end of federal alcohol prohibition provides a potential model for how state-level marijuana reform efforts could be allowed to proceed. After adoption of the 21st Amendment, federal law continued to prohibit the sale and distribution of alcohol where such activities remained illegal under state law. Put another way, possessing, transporting and distributing alcohol in violation of state law was itself a federal offense. This remains true today. Thus, if a business produces alcohol in one state with the intention of exporting it to another state in violation of either state's laws, it has committed a federal crime. In this way, the federal government allows each state to make its own choices with regard to alcohol policy and limits the effect one state's choices can have on its neighbors. There's no reason a similar approach would not work for marijuana.

Some opponents of state-level marijuana policy reform fear that legalizing marijuana in one state necessarily harms others. Such concerns are likely overstated, as Alabama argued in its powerful Gonzales v. Raich amicus brief, but can be addressed by limits on interstate trafficking, as has been done with alcohol. Marijuana would not be the first product to be legal in some states but not in others, and there's no reason the traditional federalism principles are not equally applicable here. Perhaps Congress should give it a try.

Note: For those interested in this issue, I'll be participating in a panel on Wednesday in Burlington, Vt., "Has Federalism Gone to Pot?" sponsored by the Federalist Society. Here also is my Introduction to a 2014 symposium on the subject, published in the Case Western Reserve Law Review.

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Opinion | Will marijuana make federalism go up in smoke?

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During the campaign, Donald Trump endorsed medical marijuana and said pot legalization "should be a state issue, state-by-state." Attorney General Jeff Sessions, on the other hand, is a fierce opponent of marijuana and has opposed measures that would limit the federal government's ability to interfere with state decriminalization efforts.