Skip to main content

Survey of Marijuana Law in the United States: Introduction

Articles Regarding Status of Marijuana in the United States

Congressional Research Service: Marijuana: Medical and Retail - Selected Legal Issues 

Authors: Todd Garvey, Charles Doyle, David H. Carpenter). 

The federal Controlled Substance Act (CSA) outlaws the possession, cultivation and distribution of marijuana except for authorized research. In addition to facing the prospect of a federal criminal prosecution, those who violate the CSA may suffer a number of additional adverse consequences under federal laws. However, without federal statutory sanction, more thn 20 states have established medical marijuana regulatory regimes. Four have gone further and "legalized" marijuana under state recreational marijuana laws.  This research is an analysis of some of the legal issues the situation has generated and some of the proposals to resolve them.

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.

Jeff Sessions’ Coming War on Legal Marijuana

Author: James Higdon 

An article written on Senate Jefferson Beauregard Sessions III who has called marijuana reform a "tragic mistake" and criticized te FBI for not seriously enforcing a federal prohibition that President Obama has called "untenable over the long term".

Current Trends in Marijuana Regulation

Author: Lauren Males 

This Article gives a general background on marijuana regulation in the United States. Then, it discusses current marijuana legislation and enforcement policies on the federal and state level. It follows with a discussion of recent changes in the political atmosphere and local changes in the law and policies relating to marijuana. In conclusion, future possible changes in the law are discussed.

The Future of Marijuana in the United States

Author: Steven B. Duke 

There are striking similarities in the failed movement to repeal marijuana prohibition in the 1970s and the efforts underway today. A major difference is that the merits of repeal are far clearer today than they were forty years ago. This article discusses some of the reasons why marijuana prohibition cannot be justified, including the myriad ways in which marijuana prohibition encourages serious crime against victims having no connection to marijuana. It explains the limited long-term value of decriminalization versus regulated legalization, which should be the ultimate objective of reformers. Possible treaty constraints on federal reforms are explored. The limitations and uncertainties inherent in the incompatibility of state-level permissiveness and federal prohibition are also addressed. Reformers are advised to intensify their efforts to replace prohibition with regulation at both state and federal levels.

Dope Dilemmas in a Budding Future Industry: An Examination of the Current Status of Marijuana Legalization in the United States

Author: Steven Vitale 

This article provides an in-depth analysis of the current status regarding legalization of marijuana in the United States. It begins by tracing a brief history of legalization in this country, with a particularized focus on the current activities of Colorado and Washington. The next section addresses the federal-state law conflict issue, coupled with a thorough analysis of two recent and relatively unexamined developments — the Department of Justice’s August 29, 2013 memorandum issued as a guide to federal prosecutors concerning marijuana law enforcement, and the September 10, 2013 judicial committee hearing on the conflict between federal and state marijuana laws. Lawyers seeking to aid clients in this newly emerging business will be confronted with ethical dilemmas. This article provides a specialized focus on the role of the Fifth Amendment privilege against self-incrimination, and its potential effect on this budding and lucrative industry. So long as the federal-state law conflict exists, it seems that the current climate, filled with uncertainty and ambiguity, allows for possible arbitrary abuse of power and selective prosecution by the federal government. The final section will briefly discuss what the future of federally legalized marijuana might look like — how marijuana might be dealt with as a controlled and regulated substance in the business sector, how the law would handle such a shift, and what overarching effects this shift might have on the criminal justice system.

Joint Reform?: The Interplay of State, Federal, and Hemispheric Regulation of Recreational Marijuana and the Failed War on Drugs

Author: Steven W. Bender

In 2012, Washington and Colorado voters surprised the nation by authorizing the recreational use of marijuana. The outcome sent state regulators scrambling to implement the directive and supply a product source, while the federal government faced its own dilemma of whether to tolerate or squelch these state initiatives contradicting longstanding federal law. Surely the Mexican drug cartels (and other illicit growers and suppliers from Canada and within the United States) weighed the prospect for wider reform and its consequences for their multi-billion dollar industry. Although few of these uncertainties have been resolved with any clarity at the time of this writing, below I aim to situate these just-enacted allowances of recreational use within the broader history of U.S. and hemispheric drug regulation, suggesting a framework for additional reform. Having advocated elsewhere for selective legalization of illicit drugs, starting with marijuana, here I address the process of that reform. I suggest the natural order is that states, having first vilified and criminalized marijuana, should lead the way toward rational drug policy. Additionally, informed by that history, I address the appropriate responsive role of the federal government that is busily conducting the failed War on Drugs. Given the interconnectedness of Mexico and the Mexican cartels in the illicit drug trade, and, for Mexico, in the racialized origins of U.S. marijuana prohibition in the first instance, I also situate both Mexican drug policy and the Mexican cartels within U.S. reform that steers us away from the present course of a bloody war on Mexican streets and mass incarceration of communities of color in the United States. Although dismissed by some as intended to launch a stoner jubilee, legalizing recreational use carries the potential to reverse these seemingly intractable trajectories of national and hemispheric violence and oppression. When the smoke clears, we may look back years from now on the moral courage and vision of voters that helped point the nation on a different path from its last 100 years‘ failed journey.

Legally Green: February 2013 State Legislatures Magazine

Author: Suzanne Weiss

This article is an overview of Washington and Colorado's new pot laws. 

Marijuana at the Crossroads: Keynote Address

Author: Sam Kamin 

In preparing this keynote, I was contacted by a reporter who would be covering this event wanting to know exactly what I would be saying during my remarks.  I told him that giving a keynote address at a conference about medical marijuana is sort of a procrastinator's dream; it is almost impossible to know in advance what you will be talking about because you have no idea what the state of the law will be in two or three days. During one of the conference's sessions one of the participants was leaving the stage and asked the other participants: "Has anyone Googled? Did anything happen while we were on stage?" That really is a pretty accurate encapsulation of the state of medical marijuana law and policy at the moment. This is an area where the state of the law, the facts on the ground, and the actions of law enforcement officials really are changing from day to day. If I had given this same talk a month earlier I might have spoken about a very different set of circumstances. With that said, my goal in this essay is to provide an overview of where we are with medical marijuana law and policy today. Given how quickly things are changing, taking a step back from the daily details to paint a broad picture of current state of marijuana law and policy is a risky proposition. I then take the further imprudent step of tracing where I see the state of law and policy headed in this ever-changing area

Mary Jane's New Dance: The Medical Marijuana Legal Tango

Author: Michael Berkey 

In 2011, fifteen years after fifteen states and the District of Columbia joined the medical marijuana legal debate," much has been written about medical marijuana regarding specific legal, scientific, or sociological issues. However, only limited scholarship is available that covers the origins and progress of the medical marijuana movement and reviews the history of marijuana use and regulation. This Note will address the chronological development of the myriad of legal issues surrounding legalized medical marijuana. The chronological analysis begins with Part I, where marijuana use is placed into its historical context prior to the first state legalizations of medical marijuana in 1996. Part II examines post-1996 state medical marijuana legislation, regulation and enforcement, and the federal government response. Part III analyzes the current legal conflicts at the state and local levels regarding the regulation of medical marijuana use and distribution. Finally, Part IV discusses the legality of dispensaries and how their business model operates.

Medical Marijuana: An Overview of Select Resources

Authors: Therese A. Clarke Arado and Annie Mentkowski 

The state laws related to legalizing medical marijuana in effect as of January 2015 are summarized.  In addition to the statute summaries, annotations of select articles are provided. The greatest portion of materials annotated involves federalism discussions and employment related issues. Also included, but to a much lesser extent are family law, transportation, and attorney ethics. Additionally, a few articles on state regulatory power and other topics are included. As this bibliography was being created, the U.S. House of Representatives and Senate introduced legislation to reclassify marijuana within the Controlled Substances Act. Those bills are referenced in a section of the bibliography. At the end of the document there are lists of recent newspaper coverage of the medical marijuana laws and debates in the United States. The creators of this bibliography did not attempt to cover the breadth of information available on this topic. These resources are meant to provide a broad picture of the medical marijuana discussion at this time, along with some history of the topic. There is significantly more literature available on medical marijuana and the various legal issues surrounding it. However, this bibliography will give researchers a good start on compiling relevant materials for further study.

Q&A: Legal Marijuana in Colorado and Washington

Author: John Walsh (with contributions from Mark Kleiman and BOTEC Analysis) 

This article provides answers to key questions regarding marijuana laws in Colorado and Washington. 

The Quagmire That Nobody in the Federal Government Wants to Talk About: Marijuana

Author: Melanie Reid 

Legalization of marijuana has become the battle cry of many in the United States who are weary of the so-called “war on drugs” and are anxious for the federal government to allow them to use marijuana as their vice of choice. In the aftermath of several states choosing to legalize marijuana for medical use or for recreational use, the federal government must respond. Currently, both law enforcement and medical marijuana dispensaries at a standoff – law enforcement awaits orders to shut down dispensaries, and the dispensaries are risking potential seizure and the loss of their businesses. The federal government has three options: (1) legalize, (2) change marijuana from a Schedule I substance under the Controlled Substances Act to a Schedule II substance which would permit marijuana for medical purposes, or (3) enforce the current federal laws criminalizing the importation and distribution of marijuana. This article argues that option #2 is not viable and has been found to be problematic. Studies have revealed that the majority of those using marijuana with “medical cards” authorized by the state are not, in fact, using marijuana for medical purposes but rather, for recreational use. The drug cartels have gotten into bed with dispensaries and are operating without any restrictions or regulations placed on them. Moreover, marijuana cannot be changed to a Schedule II substance because the varying THC content in marijuana makes it impossible to monitor. This leads to choosing either option #1 or #2. Europe and Asia can inform this discussion. The general trend in Europe is one of prevention and decriminalization which is in stark contrast to Asia where the trend is focusing on punishment as a deterrent to drug use and distribution. The United States can look to other countries’ drug use policies to determine what has been proven to be effective. The federal government needs to take a stand and either crack down on the growing marijuana business or legalize and begin the arduous task of regulating and taxing while at the same time advocating for minimal use.

The Role of States in Shaping the Legal Debate on Medical Marijuana

Author: Florence Shu. Acquaye

In sum, this paper evaluates how much truth there is to the argument that there will soon be an end to federal marijuana prohibition. Although recreational use of marijuana has been recently legalized in Alaska, Colorado, Oregon, Washington, and Washington D.C., the focus of this paper is on the legalization of medical marijuana. Part II traces the origins of medical marijuana. Part III examines U.S. federal law’s relationship with international laws regulating marijuana to determine whether the United States may be violating international law if it allows states to legalize marijuana. The chart in Part IV provides an overview of state medical marijuana laws, showing, among other things, what amounts are legally permitted to be carried and the conditions for possession. Part V looks at the rationale the states provide for adopting or prohibiting marijuana laws.26 Parts VI and VII note the state and federal perspectives as well as the case law shaping the debate. Finally, Part VIII looks at the California Compassionate Use Act to see if it is a standard that is viable and could be emulated in other states.

State Medical Marijuana Implementation and Federal Policy

Author: Karen O'Keefe 

Since 1996, eighteen states and the District of Columbia have enacted laws removing their own criminal sanctions for qualifying patients possessing marijuana for medical purposes and for cultivation of marijuana by qualifying patients, dispensaries, or both. Polling shows that more than seventy percent of Americans support allowing the use of medical marijuana with doctors' approval, so it is expected that the number of medical marijuana states will continue to grow. Meanwhile, with the exception of approved research, the medical use of marijuana remains illegal under federal law. This paper will review efforts to reschedule marijuana under federal law, and explore the development and evolution of state medical marijuana laws and how federal law and policy has affected states' medical marijuana policies over the years. In Part I, this paper explores how federal policy generally hinders research and advancement in the field of medical marijuana. Part II reviews states' efforts in the 1970s and 1980s to allow the medical use of marijuana and how federal policies led to most of those efforts failing to provide legal protections or access to patients who could benefit from medical marijuana. Finally, Part III examines medical marijuana laws that have passed since 1996, including how those state laws have handled the question of medical marijuana access and how those efforts have been affected by shifting federal policies. The conclusion examines ways federal policy can be changed to better protect patients and providers, while ensuring states are comfortable moving forward with regulatory regimes.

Marijuana Status by State

Marijuana has already been legalized for recreational use in 10 states and the District of Columbia. Most recently, the people of Michigan voted to legalize recreational marijuana though a ballot-passed initiative that creates a system to regulate, tax, and sell marijuana to adults in the state. 

As of December 2018, over 30 states and the District of Columbia have legalized marijuana for medical purposes. Notably medical marijuana laws differ by state. For example, Louisiana permits doctors to "recommend" rather than prescribe medical marijuana and cannot be used in a form that can be smoked. Other states's medical marijuana laws allow for limited use of marijuana or specify types of medical conditions that may be treated with marijuana. Generally, states with medical marijuana laws have some sort of patient registry or ID card to protect those possessing marijuana for personal medical use. During the 2018 elections Missouri voted to legalize medical marijuana.  

There are still 4 states, however, that consider it illegal to distribute or possess marijuana either for medical or recreational purposes. These states are Idaho, Kansas, Nebraska, and South Dakota. 

While dispensing or consuming medical marijuana is not criminally prohibited by some states' laws, it is still a violation of the Federal Controlled Substances Act. Federally, marijuana is still considered a Schedule I drug, meaning that it has a high potential for abuse and no accepted medical use. Additionally, federal law prohibits doctors from prescribing marijuana. This disunity has left the legal community, the cannabis industry, and consumers in a confusing gray area.

University of Georgia Law LibraryUniversity of Georgia  |  Non-Discrimination Policy  |  Privacy Policy  | Contact Site Administrator 
225 Herty Drive Athens, GA 30602-6012 | (706) 542-5077 | University of Georgia School of Law.  All rights reserved.