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Survey of Marijuana Law in the United States: Decriminalization of Marijuana

Articles regarding Decriminalization of Marijuana

Up In Smoke: Arguments for Removing Marijuana from Schedule I 

Author: David R. Katner

With over 600,000 marijuana arrests nationwide, and more Americans being incarcerated than for any other crime in the nation's history, the Controlled Substances Act of 1970 should be amended to eliminate the inclusion of cannabis or marijuana from Schedule I. Americans spent nearly $6 billion on "legal" cannabis last year alone, and the trend among states has been to legalize the use of cannabis for both medicinal purposes and recreational purposes. The initial prohibition, the Marijuana Tax Act of 1937 ,was largely influenced by racially charged propaganda and a lack of any scientific studies of the substance. By removing the substance altogether from federal regulatory control, states would be allowed to determine for themselves how to regulate the use and dissemination of the substance. The adoption of state laws recognizing the various medical benefits of the marijuana plant will not have full force until the federal regulatory scheme has been altered.

After the Cheering Stopped: Decriminalization and Legalism's Limits

By: Wayne A. Logan 

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has, however, failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This Article examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The Article also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting police arrest authority and the many negative personal consequences flowing from arrests.

An Argument in Favor of Decriminalization

By: Kurt L. Schmoke 

This Article discusses the reasons why a policy of prohibition has not only failed to solve the drug abuse problem, but has made the problem worse. In response to such failings, this Article recommends, as an alternative to a drug-policy based on law enforcement, a measured and carefully implemented program of drug decriminalization based on the public health system. An alternate name for this policy is "medicalization."

A Decade After Drug Decriminalization: What Can the United States Learn From the Portuguese Model?

By: Jordan Woods 

Illicit drug use and drug dependence are widespread in the United States. In 2009, an estimated 21.8 million Americans aged twelve or older were current illicit drug users (approximately 8.7% of the U.S. population age twelve or older). An estimated 7.1 million Americans were dependent on, or abused, illicit drugs. The statistics above are alarming because illicit drugs pose many risks of harm to drug users and to society. Illicit drug use increases risks of mortality, communicable and non-communicable physical disease, and mental illness. Illicit drug use is also associated with greater risks of crime, higher threats to public order and safety,' and various other social costs. Given their risks and widespread use, illicit drugs pose some of the most relevant and challenging public policy problems.

The Decriminalization of Marijuana: Ignoring Federal Laws

By: Jessie M. Mills 

A new school of thought is rapidly making its way into the minds of Americans and American lawmakers. Namely, the idea that the drug marijuana, and its active ingredient, tetrahydrocannabinol, should be treated differently than it currently is under the law. In this paper, the interplay between current U.S. Federal law and select state laws will be examined. The U.S. model will then be compared to other industrialized countries, including the Netherlands and Canada. This paper will focus on the history of the criminalization of marijuana in these countries, analyze the rational behind why these countries are now ignoring their own marijuana laws, and look at reasons for reform of the current laws. The concept of comparing the U.S. constitution to the constitutions of different countries to help interpret U.S. law is a largely debated topic. On one hand, proponents argue that there is no harm in looking to what laws other countries have implemented and seeing the affects that they have had on that countries’ citizens. The potential benefits include a fast track to betterconstructed U.S. laws, a better interpretation of current U.S. laws, and accordingly a happier population of citizens. Conversely, opponents recognize that comparing the U.S. to other countries just simply cannot work because the U.S. is too different from any other country in regards to the laws themselves, the court system, and the people. The U.S. as a whole has its own history, ideals, and values and by comparing its laws to another country’s those will not be taken into consideration. Opponents fear that using foreign laws to interpret the U.S. constitution will open up the opportunity for justices to pick and choose the foreign laws they like to show support for their underlying opinions, rather than interpreting the law as it is written. However, the benefits of looking to other countries practices, especially those similar to the U.S., seem to outweigh the harm, which is why this paper will compare the U.S. to the Netherlands and Canada. 

Enabling State Deregulation of Marijuana Through Executive Branch Nonenforcement

By: Bradley E. Markano 

In an apparent victory for federalism, the Obama Administration has set out a policy of deference to state marijuana regulations, even when state laws conflict with federal prohibition. Critics of this policy have alleged that the executive is unconstitutionally leaving portions of federal law unenforced, effectively legalizing a drug that is still classified as a Schedule 1 narcotic. But in reality, current executive branch guidelines for the exercise of prosecutorial discretion are limited, vague, and largely unenforceable. Instead, the real risk is not that current federal nonenforcement policy will effectively legalize marijuana, but that the policy will fail to induce the reliance necessary for states to serve as effective laboratories of experimentation. This concern can be addressed, to an extent, by requiring that U.S. Attorneys use their enforcement authority in a more formal, transparent, and reliable fashion. However, constitutional limits on executive power mean that deregulation is likely to remain imperfect until a legislative solution is enacted.

Marijuana Localism

By: Robert A. Mikos 

The states have largely prevailed in their struggle against the federal government for control over marijuana policy. More than twenty states have already legalized marijuana for some purposes under state law, and the number is sure to grow. Though the federal government has not yet formally repealed its own marijuana prohibition, it has largely ceded control of the issue to the states. But the states are now facing growing opposition from within their own borders. Citing concerns over marijuana’s perceived harms, many local communities in marijuana legalization states are seeking to reinstate marijuana prohibitions at the local level. Communities in at least twelve marijuana legalization states have already passed local bans on marijuana dispensaries. Even in Colorado, arguably the state with the most liberal marijuana policies, more than 150 municipalities have passed ordinances banning the commercial sale of marijuana. And countless other communities that otherwise welcome or at least tolerate the marijuana industry are nonetheless attempting to regulate it, imposing their own idiosyncratic rules concerning the location, size, hours, signage, security, and goods sold and taxes paid by local vendors.

Misdemeanor Decriminalization

By: Alexandra Natapoff 

As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions. The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

Prosecutorial Decriminalization

By: Erik Luna 

The article discusses the legal concept of prosecutorial decriminalization in the U.S. as of July 2012, focusing on an analysis of the use of criminal laws to enforce the public standards of morality in America. Penal codes and criminal sanctions are addressed, along with several reform measures aimed at restructuring a criminal law system in the U.S. which has reportedly been overburdened by overcriminalization. The use of the American judiciary system as a check on overcriminalization is mentioned.

Cities that have Decriminalized Marijuana

​Cities in Michigan: 

  • Ann Arbor
  • Berkley
  • Detroit
  • East Lansing
  • Ferndale
  • Flint
  • Grand Rapids
  • Huntington Woods
  • Lansing
  • Jackson
  • Keego Harbor
  • Mount Pleasant
  • Pleasant Ridge
  • Portage
  • Port Huron
  • Saginaw

Other Cities:

  • Atlanta, GA
  • Berkeley, CA
  • Chicago, IL
  • Columbia, MO
  • Miami, FL
  • Milwaukee, WI
  • Monona, WI
  • New Orleans, LA
  • New York, NY
  • Orlando, FL
  • Philadelphia, PA
  • Pittsburgh, PA
  • Santa Fe, NM
  • Tampa, FL
  • Toledo, OH
  • Wichita, KS


Decriminalization of Marijuana by the States



Twenty-two states and the District of Columbia have decriminalized possession of small amounts of marijuana. This generally means certain small, personal-consumption amounts are a civil or local infraction, not a state crime (or are a lowest misdemeanor with no possibility of jail time).

States that have decriminalized marijuana include Alaska (also now with legal provisions), California, Colorado (also now with legal provisions), Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Oregon (also now with legal provisions), Rhode Island, Vermont and Washington (also now with legal provisions), and the District of Columbia (also now with legal provisions).

Of those, six—Minnesota, Missouri, Nevada, North Carolina, Ohio - classify possession of specified amounts as a low-level misdemeanor with no possibility of jail. The other states with decriminalization policy have specified small amounts of marijuana as a civil infraction, or the like.

Ten states and the District of Columbia have now legalized recreational adult-use marijuana. These states include Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington.

Recent Legislative Updates:

In 2018, Vermont became the first state to legalize recreational marijuana use for adults through the state's legislative process, rather than through voter-passed initiatives. 21 states considered bills that would legalize adult-use marijuana: Connecticut, Delaware, Georgia, Hawaii, Kansas, Kentucky, Maryland, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, South Carolina, Wisconsin and West Virginia. As of December 2018, none of these measures passed. 

In 2017, New Hampshire decriminalized small amounts of marijuana though HB 640. Fines for possession of up three-quarters of an ounce of marijuana were reduced from $2,000 to merely $100 for a first or second offense. In 2016, New Hampshire passed legislation (SB 498) that made possession of one ounce or less of marijuana an unspecified misdemeanor, stopping short of decriminalization.

2014-2016 Recap

In 2016, bills to decriminalize certain amounts of marijuana failed in Alabama, Arizona, Georgia, Hawaii, Tennessee, Virginia and Wyoming. The Hawaii House adopted a resolution (HCR 127) providing for a legislative study of potential impact of marijuana decriminalization. Additionally, the Illinois governor signed SB 2228 that decriminalized possession of 10 grams or less of marijuana, making it an infraction that does not appear on one's criminal record. 

In 2015, Delaware (HB 39) decriminalized personal use amounts of marijuana. Possession of up to one ounce of marijuana by adults is a civil violation with a $100 fine. The Illinois governor issued an amendatory veto to the General Assembly's HB 218, which would have decriminalized possession of not more than 30 grams of cannabis, making it a petty offense with a fine of $125. Bills to decriminalize marijuana were before legislatures in 15 states in 2015, and some are among those pending in 2016. A Hawaii bill passed the Senate but was not advanced in the House.

Maryland approved decriminalization (SB 364) in 2014, making possession of less than 10 grams of marijuana a civil, rather than criminal, offense, subject to a fine ranging from a $100 to $500, depending on the number of violations. Funds go to the Department of Health and Mental Hygiene for drug treatment and education programs. The act requires appearance in court by violators younger than age 21, and establishes separate procedures and consequences for those younger than 18 years old.

A 2014 act in Missouri (SB 491) made first-time offense of possession of 10 grams or less of marijuana a Class D misdemeanor, which has no statutory jail time, rather than a Class A misdemeanor. Also in 2014 and preceding the successful legalization ballot measure, the District of Columbia enacted legislation (BB 409), which passed congressional review and was assigned Law #126. It made possession or transfer without remuneration of one ounce or less of marijuana a civil violation subject to a fine of $25 and seizure of any marijuana and paraphernalia visible to the police officer at the time of the violation. Vermont decriminalized marijuana possession in 2013,  and in 2014 the General Assembly adjourned without advancing a measure that would have decriminalized several additional offenses.

Source: National Conference of State Legislatures, Marijuana Overview. Current as of December 14, 2018

22 States and the District of Columbia have decriminalized small amounts of marijuana

  •  Alaska
  •  California
  •  Colorado
  •  Connecticut
  •  Delaware
  •  District of Columbia
  •  Illinois
  •  Maine
  •  Maryland
  •  Massachusetts
  •  Michigan
  •  Minnesota
  •  Mississippi
  •  Missouri
  •  Nebraska
  •  Nevada
  •  New Hampshire
  •  New York
  •  North Carolina
  •  Ohio
  •  Oregon
  •  Rhode Island
  •  Vermont

10 States and the District of Columbia that have legalized recreational adult-use Marijuana

  • Alaska 
  • California
  • Colorado 
  • District of Columbia 
  • Maine
  • Massachusetts
  • Michigan
  • Nevada 
  • Oregon
  • Vermont
  • Washington
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