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What Are the Differences Between Decriminalization and Recreational Use?

cannabis decriminalization

Every year, there is a push for the federal government to decriminalize marijuana. In 2023, there was a big push toward cannabis legal reform, and some hoped that would result in the decriminalization of cannabis nationally. Unfortunately, it has not happened yet.

In all the discussions about rescheduling cannabis, new federal expungement qualifications, and decriminalization, it can be confusing to understand how legal changes will impact Americans. Does decriminalization mean that everyone will be allowed to use cannabis? What happens to people who have a prior criminal record for a non-violent cannabis offense?

Sometimes, we get asked about cannabis legalization and what that would mean for the average American. Here are some important things to know about decriminalization and recreational marijuana use.

What Cannabis Decriminalization Means

arrested for cannabis possession

Decriminalization of cannabis does not mean that everyone will be able to legally use cannabis. What it would change are the consequences you may face if you are found in possession of cannabis products and face potential legal charges.

Federal and state decriminalization’s goal is the same: incarcerating fewer people for simple possession charges. Sending Americans to prison for having a small quantity of cannabis never did make sense. Today, as a society, we understand how devastating incarceration can be for citizens and their families and weigh that cost against the crime of using a substance that is legalized in the majority of states across the country.

Decriminalization is slowly happening in cities where medical marijuana and adult use are legalized. Cities and towns have the power to decriminalize cannabis. One example of this is Austin, Texas, where lawmakers and enforcement agreed to refrain from charging citizens for misdemeanor amounts of cannabis. In Austin, marijuana possession is 0-4 ounces. Travis County is unlikely to prosecute for possession of four ounces or less.

That doesn’t mean that cannabis is decriminalized in the state of Texas, however. You can face misdemeanor and felony charges in other Counties that have not decriminalized cannabis. The minimum penalty in Texas for possession of a controlled substance (POCS) is a Class B Misdemeanor with 180 days of incarceration and a fine.

Decriminalization means no official criminal sanctions against you or public record of your offense. Even when marijuana remains illegal by federal law, some states are tackling cannabis legal reform to make simple possession a non-offense.


Reducing Criminal Penalties for Simple Possession Charges

Decriminalization at the state law or federal law levels would impact the penalties imposed by the criminal justice system. For example, rather than a criminal conviction, some states have discussed mandatory drug treatment programs and education rather than hefty fines or a jail sentence.

Not all cannabis-related crimes may qualify as simple possession charges. For example, regardless of the amount in possession, if you are found trafficking or illegally growing or processing cannabis products, it is a felony offense. Additionally, any cannabis possession charges that involve another crime, firearms, or violence are not recognized as simple possession and can result in felony charges.

The Differences Between Legalization and Decriminalization

As discussed, decriminalization focuses on removing criminal sanctions against people who are found with a small amount of cannabis for personal use. However, the legalization of cannabis is a broader scope that would impact not only personal use but also commercial activities related to commercial cannabis activities.

At the time of writing, cannabis remains a prohibited drug on Schedule I of the Controlled Substances Act. There are currently no federal laws governing cannabis cultivation, processing, manufacturing, and sales. The federal government does not provide guidance for illegal activities.

However, if the federal government chose to legalize cannabis, there would be new laws that govern how cannabis-related businesses (CRBs) operate. The SAFER Banking Act is an important move toward granting CRBs the same financial services as other businesses.

Medical marijuana legalization may happen at the federal level, but industry experts feel it will be a long time before it happens. Many people believe it is unlikely that the federal government will be legalizing recreational marijuana. But that will not interfere with states that have legalized recreational use.

Cannabis sales in the United States were predicted to surpass $33 billion in 2023. The industry is far too large to remain federally unregulated.

Understanding Recreational Marijuana Legalization

cannabis legalization

Recreational use of marijuana is legalized in twenty-four (24) states at the time of writing. That means adults aged twenty-one years or older with valid photo identification can enter a dispensary and purchase cannabis products.

Adult use consumers have a maximum quantity that they can purchase every month, which is established by state law. In most states, the maximum quantity limit matches the legal possession limit for cannabis as well.

Dispensary purchases are tracked, and quantities are, too, through point-of-sale software used by dispensaries. If a dispensary is found overselling cannabis to anyone, there are harsh regulatory penalties, including fines and loss of business license(s).

Can You Face Criminal Penalties for Recreational Use?

If you live in a recreational state or you are visiting one, there are state laws that protect your right to use cannabis. However, there are still instances where you can face cannabis-related criminal penalties for consuming cannabis in prohibited locations (near schools, hospitals, federal buildings, or properties).

You may also face legal charges if you have more than the maximum amount of cannabis (by grams or ounces) permitted in the state. This can happen easily because THC is by volume. For example, a cannabis flower may contain more THC than a cannabis-infused brownie, but as the edible is heavier, it can result in a serious charge.

What Could Happen if Cannabis is Rescheduled?

President Joe Biden asked the Department of Health and Human Services (HHS) to evaluate whether cannabis could be rescheduled from Schedule I to Schedule III of the Controlled Substances Act (CSA). At the time of writing, the Drug Enforcement Agency (DEA) is reviewing the request from HHS to make cannabis a Schedule III drug.

If cannabis is rescheduled, it will change the legal system and reduce penalties for possession. It could have the same effect as federal decriminalization; fewer people would be charged or incarcerated for cannabis use.

There is also the remote possibility that medical cannabis costs could be partially covered by health insurers, reducing the out-of-pocket expenses for patients.



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