Possession of Marijuana: Alternatives to Jail

Learn about different approaches states take on low-level offenses for marijuana possession.

By , Attorney · Mitchell Hamline School of Law
Updated May 03, 2023

Marijuana ranks as the most commonly used illegal drug in the United States. Federal law makes possession of marijuana a crime, and having even small amounts can result in jail time for first-time offenders. And while a growing number of states have broken from federal law and either decriminalized or legalized certain uses of marijuana, many states still prohibit possession.

Marijuana Possession Offenses

Marijuana possession offenses typically carry less severe penalties than sale or trafficking crimes. Many states have reduced penalties when possession involves a small amount of marijuana, especially for first-time offenders. Some states have decriminalized low-level possession crimes (more on this topic below), while others impose criminal penalties but offer options to avoid jail time.

Here's some information about the different approaches states are taking on low-level offenses for marijuana possession.

Civil and Fine-Only Penalties for Marijuana Possession

Despite the federal classification of marijuana as an illegal Schedule I drug, a number of states have decriminalized possession of small amounts of the substance. In "decriminalized" states, the law still prohibits possession, but punishment is typically a civil fine or low-level criminal infraction that can't result in jail time. (This approach is different from legalization, which is when a state removes all criminal or civil penalties.)

Civil Penalties

In some states, possession of a small amount of marijuana constitutes a civil—not criminal—offense. A civil citation or infraction typically results in an administrative fine. Because the criminal process doesn't come into play, there's no criminal record.

Fine-Only Penalties

Other states make possession of a small amount of marijuana a fine-only offense. Offenders typically receive criminal citations but police officers usually don't arrest them unless aggravating circumstances are involved. (More on aggravating circumstances below.) Even though the sentence doesn't include jail time, a defendant's criminal record might show the conviction. In some states, this record can be sealed or expunged after a certain amount of time has passed.

Alternatives to Jail Time for Marijuana Possession

Even among those states that criminalize possession of small amounts of marijuana, many have moved away from harsh penalties for lower-level offenses and offer alternatives to jail. Non-jail options provide offenders a chance to seek treatment and avoid a criminal record. Common examples of alternatives to jail include diversion, deferred sentencing, and probation.


Several states allow diversion (sometimes called "deferred prosecution") for first-time offenders charged with possession of small amounts of marijuana. Diversion provides an alternative to prosecution or conviction if the defendant agrees to, and successfully completes, counseling, treatment, or other requirements. In some instances, diversion allows a first-time offender a chance to avoid a criminal record.

Deferred Sentencing

Some states authorize judges to defer (or postpone) entering a sentence and instead place the defendant on probation. As part of this arrangement, a defendant must fulfill certain conditions (which are also set by the judge). Similar to diversion, probation conditions usually include a combination of requirements 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. Upon the defendant successfully completing probation, the judge typically dismisses the criminal charges.

Probation in Lieu of Jail

When a judge imposes the sentence (rather than deferring it), the defendant can still avoid jail time if the judge orders probation in lieu of time behind bars. In this scenario, the jail sentence hangs over the defendant's head during the probation period. A defendant must comply with all the probation conditions and not commit any other crimes to avoid going to jail. Upon successfully completing probation (and thus the sentence), the possibility of jail time goes away. The defendant's record would, though, still show a conviction.

Marijuana Possession Involving Aggravating Factors

If the circumstances of a marijuana possession crime involve aggravating factors, a person likely can't take advantage of the non-jail options described above. Common examples of aggravating factors include:

  • possession near a school or a drug-free zone
  • possession in the presence of a minor, or giving marijuana (even small amounts) to a minor
  • repeat convictions for possession or other offenses
  • growing or possessing marijuana with the intent to sell it, and
  • driving under the influence of marijuana, alcohol, or both.

Talk to a Lawyer

If you've been charged or cited for possession of marijuana, you might want to consult an experienced criminal defense attorney. An attorney can explain the law in your state, including whether yours has rehabilitation-focused "drug courts" that might come into play. A lawyer can further advise you about issues like the possibility of avoiding jail time by seeking reduced charges, diversion, or probation. Because even non-jail penalties can result in a criminal record, it's best to discuss your options and any potential consequences with a lawyer.

Marijuana Laws in Selected States

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

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