According to the National Institute on Drug Abuse, marijuana ranks as the most commonly used illegal drug in the United States. While some states have passed laws permitting or decriminalizing possession of small amounts of marijuana, marijuana remains an illegal controlled substance under federal law.
The conflict might someday be resolved, but for now, federal and state law are at odds with each other. As a result, federal consequences are possible even when people follow state laws about marijuana use and possession.
Federal drug laws classify marijuana as a Schedule I drug. A first possession offense—of any measurable amount—carries misdemeanor penalties of imprisonment for up to one year and a minimum $1,000 fine. The penalty increases to a felony for a second possession offense. If someone possesses marijuana in order to sell it or for other criminal reasons, the penalties become much harsher—including possible mandatory prison time and forfeiture of property or money. (21 U.S.C. §§ 812, 844 (2019).)
Given this legal framework, federal prosecutors can prosecute conduct that is legal under a state’s marijuana laws (more on state laws below). While federal prosecution for marijuana possession when state law allows it isn’t common, the rise in the number of states authorizing certain medical and recreational marijuana use has prompted the federal government to reevaluate its enforcement policies from time to time.
Some states follow federal law and prohibit any possession of marijuana. But a growing number of states have enacted laws that split from federal law and allow possession of small amounts of the drug.
More than 30 states have approved medical marijuana programs. Regulations vary widely between states. To legally purchase and possess medicinal marijuana, most states require patients to register with the state or obtain a specific identification card. Some states allow patients to grow their own marijuana, while others allow access only through regulated dispensaries.
A few states have legalized possession of small amounts of marijuana for personal use by adults. But, even in these states, limits exist.
In “legalized” states, laws still control:
And similar to alcohol, driving under the influence of (legal) marijuana remains illegal (and dangerous).
Instead of legalizing recreational use of marijuana, some states have decriminalized it. What’s the difference? In “decriminalized” states, the law still prohibits possession of small amounts of marijuana, but punishment is typically a civil fine or low-level criminal infraction that can’t result in jail time.
A number of states that have legalized or decriminalized marijuana possession allow people with past convictions to seal or expunge their old records. Depending on the state, the process can be automatic or require people to petition the court. Clearing your criminal record often helps in obtaining jobs, housing, and professional licenses.
See the following links for state-specific information on marijuana-possession laws and penalties. And read below for general information on possible legal fallout from use and possession of the drug.
If you’re arrested for illegal possession of marijuana, you could face charges ranging from minor criminal infractions to felonies, depending on the circumstances. Here are some common factors that determine the severity of the punishment.
How much? Punishment for marijuana possession often varies according to the quantity of marijuana involved. A person who possesses a small amount (for personal use) might face misdemeanor penalties. However, if the quantity is large enough to indicate that it’s held for sale rather than for personal use, possession almost always constitutes a felony. (Even when the amount is small, other factors can lead to a possession-for-sale charge—for example, also possessing scales or packaging materials.)
Where? Increased penalties can apply if someone who has marijuana possesses it near places where children or vulnerable adults spend time, such as schools, youth centers, parks, public housing, and drug treatment centers. In states where some kinds of recreational use is legal, the law usually prohibits possession in public areas.
Other crimes? Possession in connection with other violations—like drug trafficking, large-scale grow operations, violent activities, or illegal firearm possession—often carry severe felony penalties.
Prior convictions? Having multiple drug convictions on your record usually results in increased penalties. Instead of misdemeanor charges, a repeat drug offender might be looking at felony penalties and possibly prison time. On the flip side, for low-level possession offenses, some states offer diversion to first-time offenders. Diversion provides an alternative to prosecution or conviction if the defendant agrees to, and successfully completes, counseling or treatment.
If you’ve been arrested for illegal possession of marijuana, consult an experienced criminal defense attorney. An attorney can advise you on the possibility of seeking reduced charges or diversion, as well as provide legal advice on the potential consequences of the charges against you.