“Decriminalization” of Marijuana

Rapidly changing marijuana laws in this country have left many confused about the legal impact possession of a small amount of marijuana will have on their lives. The word “decriminalization” is often thrown around to describe many of these changes, although the impact this can have on a person’s life still varies widely amongst states.

Decriminalization broadly refers to decreased penalties for the possession of small amounts of marijuana. Beyond that, the matter instantly becomes more complicated.

What constitutes a “small” amount of marijuana differs drastically amongst the states. In Ohio, for example, possessing anything less than 100 grams of marijuana is a misdemeanor for which you cannot receive jail time—this amount is almost four ounces. Meanwhile, in other states, like North Carolina, this amount is half an ounce.

The legal status of marijuana in this country is further uniquely confused from the beginning by the fact that the federal government still classifies it as a Schedule I drug, the most severe classification (by comparison, North Carolina classifies marijuana as a Schedule VI substance, the least severe classification). The federal government can enforce its laws against someone no matter what state they are in, because state laws are not supposed to conflict with federal law.

But many states have decriminalized it, and these laws do conflict with federal law.

This means that the Feds can technically prosecute a person for any marijuana possession, use, or cultivation even if the laws of that state do not consider possession in that amount a crime. However, this is relatively rare and the federal government mostly focuses on large-scale marijuana operations, especially those that cross state lines. Two separate Deputy Attorneys General have released memos addressing federal prioritization of marijuana prosecution since 2009:

• The first came from Deputy Attorney General David Ogden and declared that in states where it was legal, prosecuting personal medical marijuana use was a low priority for federal enforcement agencies even though it was and is illegal under federal law.

• The second memo, in 2011, came from Deputy Attorney General James Cole and instructed federal enforcement agencies to increase the priority placed on prosecuting growers and dispensaries.

However, the federal government still has enormous latitude to pick and choose what marijuana cases they want to prosecute. The federal government is going to have to decide in the years to come how it is going to address this conflict between federal law and the laws of many states.

Using the word decriminalization is misleading in the context of some states’ marijuana laws. North Carolina’s system could best be described as “decriminalization-lite.” NC has decreased the penalties for possession—if you are caught possessing a half-ounce of marijuana or less in this state it is still a Class 3 misdemeanor but you cannot be sentenced to any jail time regardless of your criminal record. Possession of more than half an ounce to one and one-half ounces of marijuana is a Class 1 misdemeanor for which you can serve up to 120 days in jail depending on your criminal record. Possession of more than one and one-half ounces is a Class I felony (the letter “I”). This is the lowest level of felony but can be punishable by up to 21 months in prison depending on your record.

These laws contrast to those of other states that have a more “true” system of marijuana decriminalization. If you have half an ounce or less of marijuana in North Carolina, you won’t go to prison but will still have a misdemeanor on your criminal record unless you can get it expunged. A misdemeanor conviction can also count against you as a predicate offense if you are ever convicted of another crime with regards to calculating your prior record level to increase sentencing.

If you have been charged with possession of marijuana in North Carolina it is also still important to have a skilled defense attorney experienced in defending against possession charges. The attorneys at Arnold & Smith, PLLC have years of experience doing just that in the local state and federal courts. Contact us today for a free consultation.