Marijuana possession laws can be confusing. Federal law criminalizes possession of any amount of marijuana. But in some states, possession of small amounts of marijuana carries only a civil penalty or no penalty at all. The conflict between federal and state laws leaves people in a sort of legal limbo. While the issue might be resolved someday, for now, federal consequences are possible even when people comply with state laws on marijuana use and possession.
This article will provide an overview of federal and state marijuana possession laws and penalties, as well as federal enforcement. Links to selected states' marijuana laws can be found at the end of the article. (Your state law might use a different term or spelling, such as marihuana or cannabis.)
First off, how can marijuana possession be lawful and unlawful at the same time? Most marijuana regulations and enforcement are done at the local and state law level. But the U.S. Congress has the power to enact federal laws for acts that occur on federal property or that affect "interstate commerce," which basically covers any movement of goods or services that could cross state lines. The U.S. Supreme Court decided that any use of marijuana—even local—affects supply and demand in the national marijuana market. And this connection to the national market gives Congress the right to regulate local use within a state. (Gonzales v. Raich, 545 U.S. 1 (2005).)
This means that federal enforcement over local cannabis use is permissible—albeit uncommon. Federal prosecutors typically don't want to devote limited resources to low-level marijuana crimes. And, with each administration, the U.S. Department of Justice generally sets its priorities for federal drug enforcement. High priority often goes to drug trafficking or large-grow operations, whereas low-level cannabis use that complies with state law tends to rank low. But policies can and do change. It's also important to know that no conflict exists when it comes to possession of marijuana in interstate travel (vehicle and air travel) or on federal property—these acts are not permitted under any law.
A prosecution under federal law for marijuana possession is serious. It can result in incarceration, fines, civil penalties, and denial of federal benefits. Federal drug laws classify marijuana as a Schedule I drug (the highest classification). Simple possession starts as a misdemeanor but quickly jumps to a felony offense.
Misdemeanor. A first marijuana possession offense—of any measurable amount—carries misdemeanor penalties of up to one year's imprisonment and a minimum $1,000 fine.
Felony offenses. The penalty increases to a felony for a second possession offense, punishable by a minimum $2,500 fine and 15 days to two years' imprisonment. A third offense doubles the minimum fine amount to $5,000 and increases the possible time behind bars to a minimum of 90 days and a maximum of three years. 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.
Disqualifications. On top of criminal penalties, a federal or state conviction for drug possession makes the individual ineligible for certain federal assistance and benefits programs, such as food assistance and student loans.
Civil penalties. Federal law also authorizes a civil penalty of up to $10,000 for possessing an amount of marijuana for personal use.
(21 U.S.C. §§ 812, 844, 844a, 862, 862a (2021).)
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 for certain uses. Even in states that have legalized or decriminalized medicinal or adult recreational use of marijuana, possession remains regulated and illegal in certain circumstances.
Depending on your state, the following uses of marijuana may be permissible or decriminalized.
More than 35 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.
Several states have legalized possession of small amounts of marijuana for personal use by adults. But, even in these states, limits to possession and use exist. In "legalized" states, laws still control:
Instead of legalizing the 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.
Depending on where you live, your state (or even city) might make all marijuana possession illegal. Even in states that have legalized or decriminalized certain uses, possession of an amount that exceeds the "legal" limit carries penalties, as does possession by prohibited persons or in prohibited places. And similar to alcohol, driving under the influence of (legal or illegal) marijuana remains a crime (and dangerous).
State penalties are often based on the amount of the drug involved, location of the crime, a person's criminal record, and possession connected to other crimes.
How much? A person who possesses a small amount (for personal use) might face a civil infraction (fine) or misdemeanor penalties (often jail time up to one year). 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.
Other crimes? Possession in connection with other violations—like drug trafficking, large-scale grow operations, violent activities, or illegal firearm possession—often carries 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 possible 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're facing state or federal criminal charges for illegal possession of marijuana, contact a criminal defense attorney. While possession charges might seem minor, the consequences tend to be far reaching. Any jail time can result in the loss of a job. And a conviction can result in loss of federal benefits and make it more difficult to obtain employment or housing.
If you already have a conviction, you may want to contact an attorney about the possibility of expunging your federal or state criminal record. The laws on expungement change often, so even if you're not eligible now, keep checking back. For instance, as states have been legalizing or decriminalizing marijuana possession, many have expanded expungement options to allow the sealing of past marijuana convictions for acts that are no longer illegal.
See the following links for state-specific information on marijuana-possession laws and penalties.