Federal laws make the possession and distribution of marijuana illegal. However, decriminalization movements, use of medical marijuana, and social acceptance of marijuana have already been reflected in many state laws. In fact, as of October 2018, as many as 30 different jurisdictions have legalized some marijuana use according to a range of different restrictions. As a result, marijuana sentencing alternatives in several states have drastically changed in the past decade.
Under federal law, marijuana is considered like every other controlled substance, such as cocaine and heroin. The federal government puts every controlled substance in a schedule and marijuana is classified as a Schedule I drug, which means that the federal government views marijuana as highly addictive and having no medical value. Doctors may not prescribe marijuana for medical use or under federal law, but they can recommend the use to patients under the 1st Amendment
It all depends whether on the state you are in and whether your violation comes under federal law or state law. Many states have implemented laws that decriminalize marijuana possession, or that greatly reduce the legal penalties associated with marijuana violations. Unlike other types of drug crimes and drug-related offenses, marijuana crimes often carry with them various sentencing alternatives.
The federal penalties for possession of any amount of marijuana are as follows:
- First Offense: Misdemeanor, 1-year jail, up $1000 fine
- Second Offense: Misdemeanor, up to 2 years jail, up to $2,500 fine
- Third and Subsequent Offenses: Misdemeanor or felony, up to 3 years jail, up to $5,000 fine
The penalties for selling marijuana are:
- Less than 50 Kilograms: Felony, up to five years in prison and a $250,000 fine
- 50 to 99 Kilograms: Felony, up to 20 years in prison, and fines of up to $1,000,000
- 100 to 999 Kilograms: Felony, 5-40 years in prison, and fines of up to $2,000,000
- 1000 kg and Up: Felony, 10-life in prison, and $4,000,000 in fines
Although states have decriminalized marijuana possession, you can still be charged with possession of marijuana in certain instances. Several states have still kept criminal classification of marijuana possession, but have alternative sentencing for defendants who possess small amounts. In these states, marijuana law violators can still be arrested and charged with illegal marijuana possession, but the may get a non-jail alternative for punishment and sentencing.
Depending on your local state’s laws, there may be several non-jail alternatives for persons charged with marijuana-related offenses. These can include:
- Pre-Sentencing Probation: This allows the judge to postpone a sentence for the offender, and place them on probation instead. The defendant must usually fulfill several conditions, such as participation in a drug awareness education program, submitting to random drug testing, or being placed on house arrest.
- Criminal Fines: In some jurisdictions, possession of a small amount of marijuana is considered no more serious than a traffic violation. Instead of facing arrest or possible jail-time, the offender may simply pay a fine. This is a more likely result if it is an individual’s first offense.
- Diversionary Programs: Similar to probation programs, diversionary programs allow the offender to avoid a jail sentence on condition that they complete various requirements. These can include performing community service or attending rehabilitation programs.
- Diversionary programs are especially common amongst juvenile offenders who have been charged with possession of marijuana.
- Restitution: Offenders may be required to pay the state restitution if there was damage to property or persons during the committed offense.
- Community Service: Defendant may be required to do community service instead of service jail or prison time depending on the state law or defendant’s criminal history.
For some of these sentencing alternatives, emphasis is placed on the defendant completing the required measures. For example, if the defendant fails to attend probation courses, they may lose their probation privileges, and will instead face normal sentencing methods like fines or jail time.
In states that have not decriminalized marijuana, legal penalties are similar to those for other drug offenses. These penalties can have a wide range depending on the nature of the charge (possession, distribution, cultivation), the quantity of marijuana seized, and the sentencing guidelines of the state. In addition, greater penalties may be imposed if certain aggravating factors are included in the charge.
Some aggravating factors include:
- Possession of marijuana in a drug-free zone (such as near a school or daycare);
- Giving marijuana to a minor, or possession in a minor’s presence;
- Existence of prior marijuana convictions on one’s record (i.e. the current charge is for a second offense);
- Growing marijuana or possessing an amount of marijuana above certain limits, with the intent to distribute or sell it;
- Driving while under the influence of marijuana (DUID), especially where the DUI results in injury to another person; and/or
- In many states you need to be over the age of 21 to possess any kind of marijuana in any amounts similar to possession and use of alcohol.
Even with more relaxed state policies, it’s still possible for a person to be subjected to serious criminal consequences for a marijuana crime. Also, even in jurisdictions where marijuana use is legal under state law, federal law still considers marijuana to be an illegal substance.
While the previous presidential administration stated it would not interfere with state marijuana laws, as of May 2017 it remains unclear how the current administration will enforce federal marijuana policy.
While many states are moving toward decriminalizing marijuana, there can still be severe penalties for violating marijuana laws. If you have been charged with a marijuana related crime, it is important to consult a skilled criminal defense attorney. An experienced attorney can inform you of possible defenses, advocate for you in court, and seek available sentencing alternatives to keep you out of jail.