States Consider Legislative Options Regarding Marijuana Regulation

Committee of Jurisdiction: Law, Justice, & Ethics
Resolution: LJE-14-40

Introduction

Image Credit: Matthew Staver - The Washington PostImage Credit: Matthew Staver - The Washington PostPerspectives on marijuana use are changing, especially at the state level. Colorado and Washington State legalized marijuana for recreational use in 2012. Several other states, including Arizona, Delaware, Maine, Michigan, Nevada, New Hampshire, and Rhode Island, have already legalized marijuana for medical use. Currently, Florida, Kentucky, New York, and West Virginia are considering bills to legalize marijuana for medical use and others look to follow the Colorado-Washington example to allow recreational use through legislation or ballot referenda.


While studies show the majority of Americans favor legalizing marijuana, the fact still remains that it has been a polarizing issue. Lawmakers and laypersons remain on opposing sides with much of this debate coming to a head in the justice system or legislative chamber. Supporters argue legalizing marijuana will bring revenue to states in addition to removing it from the hands of illegal drug dealers, while critics point to increased exposure to adolescents and harmful side effects of marijuana use.

Moreover, in communities of color, arrests for simple marijuana possession have disproportionally impacted African-American and Latino males. Simply put, African Americans are 3.73 times more likely to be arrested for marijuana possession than Whites. The National Black Caucus of State Legislators (NBCSL) recently passed a resolution LJE 14-40 Supporting States’ Rights to Decriminalize Marijuana Use in response to this startling figure. NBCSL encourages states to consider decriminalization and other alternatives to harsh penalties as one way to help reduce mass incarceration in our communities.



Federal Action

Marijuana use is illegal on the federal level but, some lawmakers want to change that. Representative Earl Blumenauer (D-OR) introduced legislation, which has been referred to a House Judiciary subcommittee, to remove marijuana from the Schedule 1 list of drugs therefore reducing penalties for usage. Other Schedule 1 drugs include heroin and ecstasy.

The U.S. Department of Justice and the U.S. Department of the Treasury have also responded to legalization efforts. Last year, the Administration officially decided not to intervene in state decisions to legalize marijuana and is working to reduce mandatory sentence minimums. New banking regulations are being developed to allow financial institutions to provide loans to (or accept funds from) marijuana retailers and dispensaries. These actions are currently illegal and, as a result, all providers conduct their business in cash. “There’s a public safety component to this,” said Attorney General Eric Holder. “Substantial amounts of cash just kind of lying around with no place for it to be appropriately deposited is something that would worry me just from a law enforcement perspective.”



State Action

Map-of-State-Marijuana-Laws - CopyCourtesy of the Marijuana Policy Project

Decriminalization vs. Legalization
The decision of whether to decriminalize or all out legalize marijuana is also a contentious topic among lawmakers. Decriminalization refers to the decrease or removal of criminal penalties for personal use and possession of marijuana while legalization consists of a “legally-controlled market for marijuana for use from a safe legal source.” Supporters of marijuana decriminalization, such as the National Organization for the Reform of Marijuana Laws (NORML), promote several benefits of this legislative action. Savings to the criminal justice system due to fewer arrests and prosecutions and additional, “freed-up” resources to address other public safety concerns are just a few. Those in favor of legalization tout high potential state revenue as a reason for taking this action.

In states with decriminalized marijuana laws, the use and possession of marijuana, oftentimes ½ to 1 ounce, can carry no penalty up to a $200 fine for a first time offense. Subsequent incidences may result in heavier penalties depending on the state and the time period of the marijuana offense. The District of Columbia City Council recently voted to decriminalize the possession of marijuana and attach a $25 fine while keeping the public use of marijuana a crime. The D.C. City Council concerned that racial profiling would be exacerbated by public smoking of marijuana chose to retain the criminal penalty, although the jail time was reduced from six months to 60 days. The Washington Lawyers’ Committee for Civil Rights and Urban Affairs conducted a study in which they found that African Americans accounted for 9 out of 10 arrests for simple possession in D.C.

Medical Use vs. Recreational Use
Marijuana can be legalized for recreational or medical use, and laws vary by state. In 2012, Washington and Colorado became the first states to legalize marijuana for recreational use and several states, starting with California in 1996, have passed legislation to legalize the substance for medical use. For a full list of states, see the chart below.

In Rhode Island, medical marijuana can be used to treat cancer, Alzheimer’s, glaucoma, and a variety of other conditions and diseases. In Hawaii, however, severe pain, severe nausea, and persistent muscle spasms are enough to qualify for medical marijuana. States also vary on the amount an individual can legally possess and on the acceptance of out-of-state ID cards for marijuana purchase. States allow from one ounce to eight ounces and only a few allow out-of-state ID cards to be accepted at dispensaries.

Several states are taking legislative action to support medical marijuana use. The Florida Supreme Court recently approved language to be placed on a ballot initiative that would create a constitutional amendment allowing the use of medical marijuana for debilitating diseases as recognized by a Florida physician. New York NBCSL member Sen. Velmanette Montgomery introduced legislation that would allow the regulated medical use of marijuana. Additionally, Governor Cuomo has introduced a pilot program that will provide medical marijuana to 20 hospitals, which they can use to help manage pain and other illnesses.

The Colorado-Washington Example
Since legalization, results in Colorado and Washington have been a “mixed bag.” While state revenue from marijuana has remained steady, several enforcement and regulatory issues have occurred. Ballot referendum language did not mandate whether localities would have to allow marijuana retailers to operate, and some counties, in Washington in particular, are prohibiting marijuana from being sold. Washington lawmakers are also considering prohibiting marijuana producers from qualifying for agricultural tax breaks, which lawmakers argue would make it easier to track data from marijuana producers.

In the midst of political pushback, Colorado is actively working on legitimizing its retail business and the impact marijuana will have on the state. Federal grant money from the National Highway Traffic Safety Administration is being used for anti-smoking and driving campaigns in an effort to prevent impaired drivers on the road. In addition to the campaign, officials are hoping funds will be dedicated to providing training to law enforcement on recognizing drug impaired drivers.

Maryland looks to follow the footsteps of Colorado and Washington with the introduction of the Maryland Marijuana Control Act of 2014. Co-sponsored by NBCSL members, Delegates Curt Anderson, Alfred Carr, Cheryl Glenn, Nathaniel Oaks, Barbara Robinson, Melvin Stukes, Michael Summers, Frank Turner, and Mary Washington, this bill would legalize marijuana for recreational use for adults 21 years of age and older. It would also tax wholesalers and use money recouped in the first five years for drug and alcohol treatment and education.   Lastly, the legislation would require all Maryland agencies with records of marijuana arrests to delete the records while keeping marijuana smoking in public a punishable offense.  

Conclusion
Marijuana regulation is an emerging issue that is not going away. And, neither are its effects on our community. Regardless of personal position, state lawmakers must stay abreast of policy issues surrounding this drug’s regulation. Lawmakers must take action to ensure that legislation passed to decriminalize (or legalize) marijuana improves the overall quality of life of all Americans and does not disproportionately affect the nation’s most vulnerable.

Resources
  • American Civil Liberties Union - our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.
  • Marijuana Policy Project - envisions a nation where marijuana is legally regulated similarly to alcohol, marijuana education is honest and realistic, and treatment for problem marijuana users is non-coercive and geared toward reducing harm.
  • National Organization for the Reform of Marijuana Laws (NORML) – an organization whose mission is to move public opinion sufficiently to legalize the responsible use of marijuana by adults, and to serve as an advocate for consumers to assure they have access to high quality marijuana that is safe, convenient and affordable.
  • Pew Research Center for the People & the Press - one of the seven projects that carry out the Pew Research Center’s work. The project provides independent public opinion survey research about American attitudes toward politics and policy.
  • The Washington Lawyers’ Committee for Civil Rights and Urban Affairs – an organization that mobilizes the resources of the private bar to address issues of civil rights violations and poverty in our community.


NBCSL Table: States Who Have Legalized (Or Are Considering To Legalize) Marijuana
States with Decriminalized Marijuana Laws States Considering Decriminalized Marijuana Laws States with Medical Marijuana Laws States Considering Medical Marijuana Laws States with Legalized Marijuana for Recreational Use Laws States Considering Marijuana for Recreational Use Laws
Alaska
California
Colorado
Connecticut
Maine
Massachusetts
Minnesota
Mississippi
Nebraska
Nevada
New York
North Carolina
Ohio
Oregon
Rhode Island
Vermont
Alabama
District of Columbia
Indiana
Louisiana
Missouri
Wyoming
Alaska
Arizona
California
Colorado
Connecticut
Delaware
District of Columbia
Hawaii
Illinois
Maine
Massachusetts
Michigan
Montana
Nevada
New Hampshire
New Jersey
New Mexico
Oregon
Rhode Island
Vermont
Washington
Alabama
Arkansas
Florida
Georgia
Kansas
Kentucky
Minnesota
Mississippi
Missouri
Nebraska*
New York
Ohio*
Pennsylvania
Tennessee
Utah
West Virginia
Wisconsin
Wyoming
Wisconsin
Colorado
Washington
Alaska
Arizona*
California*
District of Columbia*
Maine*
Maryland
Massachusetts*
Missouri
Nevada*
New Hampshire
New Jersey
New Mexico
Oklahoma
Oregon*
Rhode Island
Vermont
* Proposed ballot referenda