Staff Reporter (2019 – 2020)
Since the 1990s, marijuana legalization has been at the forefront of political debates. A growing number of states have legalized or decriminalized recreational marijuana, legalized medicinal marijuana or cannabidiol (CBD), or introduced some combination of legalization and decriminalization.1
Common misconceptions about legalization and decriminalization.
Although “legalization” and “decriminalization” are often used interchangeably, there are significant legal differences between the two terms that drastically impact the application of laws regarding marijuana. Generally, legalization means there are no longer criminal sanctions in a jurisdiction for a particular action, while decriminalization means that someone might not be prosecuted, or prosecuted to the fullest extent of the law, for a criminal act. When it comes to marijuana legislation, there are many variations of legalization and decriminalization between states.
Legalization of recreational marijuana typically means that one cannot be arrested, ticketed, convicted, or otherwise criminally sanctioned for using marijuana–subject to age, place, and amount restrictions.2 This does not mean, however, that one cannot be arrested or convicted for trafficking marijuana or failing to follow any other state-level restrictions on the use of marijuana.3 Legalization of medical marijuana means that qualifying patients may be prescribed certain quantities of marijuana, but this does not allow the individual to use marijuana at a recreational level.4
Decriminalization, on the other hand, means that the use of marijuana is no longer subject to criminal prosecution or is subject to lesser penalties, i.e., a class C misdemeanor like a traffic ticket, rather than felony.5 In some jurisdictions, a person who is caught with small amounts of marijuana for personal use will receive the functional equivalent of a minor traffic violation and will typically not be arrested. In Dallas, Texas, this is known as “cite and release”.6 However, even where marijuana is decriminalized, possessing larger quantities of marijuana can still result in significant criminal penalties, including jail time.7
States have also made significant changes to laws targeting the use of medical marijuana, including cannabidiol (CBD), a compound also found in cannabis plants. CBD, however, does not contain tetrahydrocannabinol (THC)—the substance that causes marijuana’s psychoactive effects.8 CBD is derived from hemp plants, which are the fiber of the cannabis plant stems. By contrast, THC is derived from the leaves of the cannabis plant.9 In states where CBD is legalized, the industry is highly regulated. For example, in 2019, Texas Governor Greg Abbott signed a law that made the sale and use of CBD legal, so long as the product is derived from hemp plants and contains less than 0.3 percent THC. 10 CBD is also often subject to state labeling and quality standard regulations.11
Marijuana laws at the federal level.
Despite state level legalization and decriminalization, under the federal Controlled Substances Act, marijuana is classified as a Schedule I drug and all uses are prohibited by law.12 Under the this Act, Schedule I classified substances, such as LSD and heroin, are considered highly addictive, have no accepted medicinal use, and have a high potential for abuse.13 This means that although some states have expressly legalized marijuana, marijuana remains an illegal Schedule I drug pursuant to the federal Controlled Substances Act. This naturally leads to the question: how can marijuana be legal, and illegal, at the same time?
To answer that question, it is first necessary to understand that the United States uses a federalist system of government. Federalism is a principle whereby the power to make laws is divided between a central, or national government and regional, or local governments, such as states or municipalities.14 However, Clause 2 of the United States Constitution provides that federal law is the “supreme Law of the Land,” meaning when federal law and state law conflict, federal law is superior.15 Although many states have legalized or decriminalized marijuana, federal law still classifies marijuana as a controlled substance, thus possession can result in criminal penalties. Because federal and state laws conflict in this area, federal law remains superior.
Should individuals fear federal prosecution in states with legalized marijuana use?
You may already understand that the United States government consists of three distinct branches: (1) the legislative branch is responsible for making laws; (2) the judicial branch is responsible for interpreting laws; and (3) the executive branch, run by the President, is responsible for carrying out the laws. The Department of Justice is a federal agency within the executive branch of government responsible for enforcing laws. As a result, enforcement of laws, such as the Controlled Substances Act, can vary depending on the President’s policy initiatives. For example, the Obama administration took a more relaxed approach to prosecution of marijuana offenses than the current administration is taking.16
The nature of federal prosecution between administrations is indicative of the political views held by the President and Attorney General. Therefore, even if an individual is acting legally under state law, a simple change in administration could result in changes to federal prosecution. Presently, there is legislation pending in Congress that would change marijuana’s classification under the Controlled Substances Act, but a schedule change alone will not automatically render marijuana legal.17 As more states enact their own marijuana laws, and as administrations change, the conflict will only grow. If these conflicts are not addressed with finality, the United States could see a power struggle between federal and state governments. Until Congress or the Supreme Court decides this issue, the conflict remains, and individuals should realize that state marijuana laws are not the “supreme Law of the Land.”18
1 Jeremy Berke and Skye Gould, States where marijuana is legal, BUSINESS INSIDER (Jan. 1, 2020, 7:41 AM), https://www.businessinsider.com/legal-marijuana-states-2018-1.
2 Marijuana Legalization and Decriminalization Overview, FindLaw, https://criminal.findlaw.com/criminal-charges/marijuana-legalization-and-decriminalization-overview.html (last visited on Feb. 16, 2020).
6 Dana Branham, ‘Cite-and-release’ is used in only a small portion of Dallas police’s marijuana possession cases, THE DALLAS MORNING NEWS (Aug. 13, 2018, 4:11 PM), https://www.dallasnews.com/news/2018/08/13/cite-and-release-is-used-in-only-a-small-portion-of-dallas-police-s-marijuana-possession-cases/
7 Marijuana Legalization and Decriminalization Overview, FindLaw, https://criminal.findlaw.com/criminal-charges/marijuana-legalization-and-decriminalization-overview.html (last visited on Feb. 16, 2020).
8 What is CBD, Project CBD, https://www.projectcbd.org/cbd-101/what-is-cbd (last visited on Feb. 16, 2020).
10 Lauren McGuaghy, Gov. Greg Abbott signs law legalizing hemp production, CBD products in Texas, THE DALLAS MORNING NEWS (Updated Jun. 11, 2019, 1:50 PM) https://www.dallasnews.com/news/politics/2019/06/11/gov-greg-abbott-signs-law-legalizing-hemp-production-cbd-products-in-texas/.
12 21 U.S.C.A. § 812 (2018).
14 FEDERALISM, Black’s Law Dictionary (11th ed. 2019).
15 U.S. Cont. art. 6, cl. 2.
16 Sarah N. Lynch, Trump administration drops Obama-era easing of marijuana prosecutions, Reuters, (Jan 4, 2018 8:39 AM), REUTERS, https://www.reuters.com/article/us-usa-justice-marijuana/trump-administration-drops-obama-era-easing-of-marijuana-prosecutions-idUSKBN1ET1MU
17 Marijuana Opportunity Reinvestment and Expungement Act of 2019, H.R. 3884, 116th Cong. (2019).
18 U.S. Const. art. 6, cl. 2.