Possession of Marijuana: Alternatives to Jail

Find out whether a marijuana possession charge will land you in jail or not.

Federal law makes possession of marijuana a crime, with possession of even small amounts subjecting even first-time defendants to jail time. Despite the federal ban, some states have legalized medical marijuana use, which means that patients and caregivers who comply can at least avoid prosecution under state law (in practice, federal authorities rarely target individual medical marijuana users). But, federal law aside, what about the states’ approach to first-time users and possession of small amounts—do any states give a break to these defendants?

In some states, yes. Legislators have essentially decriminalized recreational marijuana, typically by making possession of small amounts punishable by fines or treated as infractions. Their laws do nothing to resolve the conflict between the federal ban and the leniency of the state scheme (including any medical marijuana provision)—a conflict that may resolve itself over time, perhaps by a softening of the federal law.

To learn more about this conflict as it applies to medical marijuana possession and use, see Medical Marijuana and Federal Law.

To learn more about your state’s marijuana laws, click the link to your state in the “Marijuana Laws by State” section, below.

While not covered in this article, it is also a crime to drive after using marijuana, even if you are a medical marijuana patient. For more information on this topic, see Medical Marijuana and Driving.

If you have been charged with a marijuana-related DUI, also see Driving Under the Influence of Marijuana for more information about DUI charges and possible penalties.

This article discusses the way some states have decriminalized the possession of small amounts of marijuana for personal use. In these states, there are often alternatives to criminal punishment when the amount of marijuana involved is small (though often only for defendants without a prior criminal record). Second and subsequent convictions, and convictions with so-called “aggravating factors,” are usually not eligible for alternative sentencing, as discussed below.


Decriminalization means that possession of a small quantity of marijuana for personal use is an infraction, a minor violation akin to a traffic ticket. Fourteen states have decriminalized marijuana: Alaska, California, Colorado Connecticut, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and Oregon.

Typically, violators are subject only to a small fine and first time offenders usually end up with no criminal record. In states that have decriminalized marijuana, offenders receive citations but they are not arrested unless they possess large amounts or are repeat offenders. In Alaska, which has the most liberal decriminalization laws, there is no penalty at all for possession of one ounce or less in a person’s residence.

Criminalization, But With Alternatives to Sentencing

Several states have retained the criminal classification of marijuana possession, but have alternative sentencing structures for defendants who possess small amounts (and usually only for first-time offenders). In these states, violators are still arrested and charged with illegal marijuana possession, but the judge may decide to impose a non-jail alternative for punishment. Depending on state law, non-jail alternatives may include pre-sentencing probation or a fine without jail time.

Pre-sentencing Probation with Conditions

In states that allow it, the judge may postpone entering a sentence for the defendant, and place the defendant on probation instead. As part of this arrangement, the defendant usually must fulfill conditions (which are also set by the judge). Conditions usually include a combination of things like completing a certain number of community service hours, participating in drug abuse programs or treatment, or remaining on house arrest during the probation period.

Defendants who violate their probation, or do not successfully complete the conditions, are subject to sentencing as if there had been no probation. Because even a misdemeanor marijuana possession offense can often incur jail time, hefty fines, and create a criminal record, you should do everything in your power to fulfill the terms of your probation.

Upon successfully completing the probation period and fulfilling the applicable conditions, the judge will discharge the defendant and drop the criminal charges. When the judge drops the criminal charges, the defendant is free of a criminal record.

Fine Without Jail Time

Some states that have retained criminal penalties for marijuana possession will nonetheless impose only a fine if the possession involves a small amount and the defendant has no prior criminal record. In these states, even though the sentence involves only a fine, the defendant will still have a resulting criminal conviction on his record. In some cases, it is possible to seal or expunge this kind of record.

To learn more about sealing an adult criminal record, including information on your state, see Expunging & Sealing Adult Criminal Records.

Aggravating Factors

If your crime included certain “aggravating factors,” this may undermine your ability to take advantage of the non-jail options described above. These factors include, but are not limited to:

  • possession near a school (or other drug free) zone
  • possession in the presence of a minor, or giving marijuana (even small amounts) to a minor
  • second and subsequent convictions
  • growing or possessing marijuana with the intent to sell it, and
  • driving under the influence of marijuana, alcohol, or both (to learn more about this issue, see Driving Under the Influence of Marijuana).

Marijuana Laws by State

Choose your state from the list below to find information about your states laws regarding marijuana use.

Get Legal Help for Marijuana-Related Charges

Charges for illegal marijuana-related activities are serious even if they are at the misdemeanor level. If you have been charged with a marijuana-related offense, consult an experienced criminal defense attorney. An attorney will be able to evaluate the facts of your case, give you the scoop on possible consequences if the case goes to trial, and help protect your rights (including advocating for the non-jail alternatives discussed in this article, if they are available to you). While the penalties and consequences of a marijuana charge are governed by statutory law, only a local criminal defense attorney can tell you how cases like yours tend to be handled by prosecutors and judges in your courthouse.

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