The legal status of cannabis in the U.S. isn’t very clear. At the federal level, it is an illegal Schedule I drug (Schedule I drugs are considered the most dangerous). However, individual states can determine their own laws around marijuana sales and usage, and more than half of them have legalized it.
So, is it legal or not? That is a hard question to answer, partly because it has been a political football, with one party traditionally favoring legalization and the other traditionally opposing it.
How Long Has Marijuana Been Illegal?
The earliest laws concerning marijuana were drafted before the country was even founded. The laws did not criminalize it – to the contrary, they made it mandatory. In 1619, a law was passed in the colony of Virginia, which required every single farmer to grow cannabis to produce hemp, an important commodity at the time. Over time, marijuana from the cannabis plant started to be used for medicinal purposes.
Early recreational use was first introduced by Mexican immigrants in the early 1900s. With the start of the Mexican Revolution in 1910, Mexicans began moving to the U.S. to escape the war, and they brought their traditional use of marijuana with them. Amid a growing fear of Mexican immigrants, terror began to circulate concerning the drug that was alleged to cause a “lust for blood.”
At the start of the Great Depression, drinking alcohol was illegal. Alcohol prohibition was lifted to encourage economic growth, and those who had criticized alcohol began to target marijuana instead. At the time, cannabis was consumed largely in minority communities, and racist attitudes began to shape an association between crime, lewd behavior, immorality, and marijuana.
The states began considering the possibility of outlawing marijuana, and 29 states did so in the end. In 1937, the “Marihuana Tax Act” was passed, prohibiting marijuana federally but still allowing medical use.
By the 1950s, a counterculture movement had begun, with young people using marijuana more recreationally than previous generations. Marijuana was no longer considered to be a particularly dangerous drug, but it was perceived to be a “gateway” drug, one that leads the user to try other, more damaging drugs, such as cocaine or heroin.
The federal government was unhappy with the counterculture because of its political views, including opposition to the war in Vietnam, and one way to attack them was to criminalize their favorite drug, marijuana. Eventually, the Boggs Act (1952) and Narcotics Control Act (1956) were implemented to combat the counterculture. These laws set mandatory sentences for drug-related offenses, including marijuana. A first-offense marijuana possession conviction could result in a minimum sentence of 2-10 years with a fine of up to $20,000.
In 1970, cannabis was classified as a Schedule I drug – the same category as heroin – under the Controlled Substances Act. However, the 70s also saw an opposing shift, with several states beginning to consider decriminalizing marijuana. (Decriminalization means that although marijuana remains illegal, one is not subject to prosecution or jail time for possessing low amounts.)
Fast forward to 2012. Both public perception and the law began to swing away from criminalization. Marijuana was recognized as a medicinal drug for certain medical conditions. From then on, states began to create medical marijuana systems: they legalized marijuana for medical purposes, licensed growers and sellers, and levied taxes on marijuana production and sales. Colorado was the first state to do so, with a law passed in 2012 that took effect in 2014
Today, most states have legalized medical use of marijuana, and about half of them have also legalized recreational use of the drug.
How Does Federal Marijuana Law Affect State Marijuana Laws?
When federal law and state law differ, federal law rules. Marijuana remains an illegal Schedule I drug according to federal law. This means that federal authorities can, if they choose, prosecute marijuana sale, use, and possession even in states that have legalized it.
Prosecution of marijuana offenses has varied by presidential term. The Obama administration issued the “Cole Memorandum,” which states the federal government will not interfere in states that have legalized marijuana medically or recreationally.
However, Attorney General Jeff Sessions rescinded this memorandum under the Trump administration in January of 2018. Per the administration, the federal government can step in at any time and prosecute marijuana-related activities, even in states that have legalized the product.
In 2022, the Biden administration reversed the Trump administration’s policies. A presidential proclamation indicated that all persons convicted of the federal crime of simple possession of marijuana would be pardoned. This does not, however, apply to noncitizens. Immigrant communities are among the most deeply impacted by marijuana criminalization in the US.
Human Rights Watch studied the long-term impact of minor drug convictions on immigrants, which can result in detention, deportation, family separation, ineligibility for asylum, and the inability to obtain legal status in the US.
What Are the Penalties for Being Caught with Marijuana?
State punishments vary greatly:
- As one of the toughest states on marijuana possession, Florida has the harshest penalties in the entire United States. For possessing just one ounce of marijuana, the penalty may be up to 5 years in prison and a $6,000 fine.
- In contrast, California’s punishment (when it was in place) was a $100 fine, and there was no recording of the conviction on the person’s criminal record.
Marijuana possession remains a federal offense, and federal law applies to offenses committed on federal property, which includes all national parks and military property. The federal penalty for first-time possession of marijuana is a fine of $1,000 and a maximum prison term of 1 year.
What Does the Future Hold?
Only three states still criminalize all possession of marijuana, including that which is used medicinally: Idaho, Wyoming, Nebraska, and Kansas.
- Idaho: Efforts are being made to decriminalize marijuana, but as recently as 2023, legislation to allow for medical marijuana failed.
- Wyoming: Wyoming punishes marijuana personal possession (less than 3 ounces) with a year in prison and a $3,000 fine. According to a 2022 poll, 54% of Wyoming residents support recreational legalization. Over 86% favor establishing a medical marijuana program in the state.
- Nebraska: Even just having cannabis paraphernalia, such as a pipe or bong, is a misdemeanor punishable by up to 6 months in jail. However, weed itself is partially decriminalized in Nebraska. You will most likely receive a fine or be sent to counseling. Nebraska treats first-time marijuana possession (of less than one ounce) as an infraction; you won’t be sent to prison for having a small amount of weed, but you’ll receive a $300 fine. A second offense is punishable by up to 5 days in jail and a $500 fine. Get caught for the third time, and you’ll have to spend 7 days in prison; the fine remains the same. Efforts are being made to make pot legal.
The future of marijuana in the federal justice system is a matter of politics. As mentioned, the Biden administration has decided to grant pardons to all convicted marijuana users but has not been able to garner enough promised votes to make it legal. That means, however, that if the federal government charges you with possessing marijuana, you can be convicted, but automatically pardoned.
Just as has been the case in the past, the outlook for legalizing marijuana in the federal system depends on politics. If you have any questions regarding marijuana laws, contact a drug lawyer in your area.
