Marijuana remains illegal under federal law, specifically, the Controlled Substances Act. Found at Title 21, Section 811 of the United States Code (U.S.C.), the law makes illegal to use, possess, grow and sell marijuana. It does not recognize medical marijuana.
Many states have passed laws legalizing medical and/or recreational marijuana use in recent years. However, it should be noted that if there is a conflict between federal and state law, federal law always prevails. The federal penalties for marijuana-related crimes can be severe.
In August of 2013, during the Obama administration, the Department of Justice released a memo which stated that the federal government essentially would not interfere with states in which laws had been passed to legalize marijuana, medical or otherwise.
Since the beginning of the Trump administration, though, former Attorney General Jeff Sessions had indicated that the federal government will again pursue those in violation of federal laws regarding marijuana. How much action will be taken on this matter remains to be see, but states continue to legalize marijuana.
The United States Sentencing Commission created sentencing guidelines for judges to use when sentencing people who have been convicted of federal crimes. Even possessing small amounts of marijuana in possession can lead to serious penalties.
What follows is a list of penalties based on offense, for any amount of marijuana possessed:
- For a first offense: misdemeanor, up to a year of jail time and up to $1,000 in fines;
- For a second offense: misdemeanor, up to 2 years of jail time (with a mandatory minimum of 15 days) and up to $2,500 in fines; and
- Third offense or more: misdemeanor or felony, up to 3 years of jail time (with a mandatory minimum of 90 days) and up to $5,000 in fines.
So what is a mandatory minimum? Mandatory minimums are sentencing laws passed by Congress, which, as the name suggests, require a minimum jail sentence even if a judge determines, according to the regular sentencing guidelines, that no jail time is warranted.
This means that even if there are unusual circumstances in which a judge wishes to avoid jail time for the defendant, they have no choice but to impose the minimum sentence. Additionally, you typically are cannot seek parole before serving the mandatory minimum sentence.
Strict though the penalties for possession may be, the penalties for selling or growing marijuana are even stricter. The penalties for selling and cultivating marijuana are as follows:
- Less than 50 plants (cultivating) or 50 kg (selling): felony, up to five years of jail time and up to $250,000 in fines;
- 50-99 plants or kilograms: felony, up to 20 years of jail time and up to $1,000,000 in fines;
- 100-999 plants or kilograms: felony, 5-40 years of jail time and up to $500,000 in fines; and
- 1,000 or more plants or kilograms: felony, 10 years to life in jail and up to $1,000,000 in fines.
Sales to a minor or within 1,000 feet of a school, youth center, or other protected areas will be given doubled penalties. Also, repeat offenders are subject to increased penalties and mandatory minimums.
There is also a 3 year jail time for those convicted of selling marijuana paraphernalia. Simply possessing paraphernalia is not a crime; however, those caught with paraphernalia tend to be charged with possession of marijuana, once the paraphernalia items are tested for marijuana residue.
When it comes to a conflict between federal and state law, federal law wins. Therefore, your state might have made it legal to possess, grow or sell marijuana, but you can still be arrested by federal agents and prosecuted under federal law.
If you live in a state where it is legal to grow, possess and sell marijuana, either for medical or recreational purposes, it is important to be very familiar with not only the laws on the subject but with your rights. Even if you are not currently facing criminal charges, a criminal lawyer can become familiar with your situation and help you to understand your rights and recourse, should you be arrested under federal law. The lawyer can also defend you in court, should it become necessary.
As we have seen, federal penalties for sale, cultivation and possession of marijuana can be severe. If you are facing any type of criminal charges involving marijuana, you should contact a criminal defense attorney immediately. An experienced criminal attorney in your area will be able to explain all the risks in greater detail, as well as the complex interaction of federal and state laws in this issue.