A new Marijuana Moment analysis finds that a majority of Americans now live in places where first-time, low-level possession of cannabis will generally not result in jail time.
Fifty-five percent of the population—nearly 179 million people—reside in a decriminalized area where adults mostly don’t have to worry about being put behind bars for being apprehended a first time with a small amount of marijuana, even if they don’t have a doctors’ recommendation for medical use.
Many statistics have been thrown around about how many Americans live in a state where some form of marijuana is legal. How these states are tallied is up for debate, largely because of differing language and laws for medical cannabis. Depending on how one counts, 30 or 31 states have comprehensive medical marijuana programs, and an additional 15 or so allow certain patients to access low-THC cannabis extracts.
For recreational marijuana, only nine states and Washington D.C. have passed laws legalizing possession (and most, but not all of those, allow commercial sales and home cultivation). Seventy million people live in these adult-use states or jurisdictions, or 21.5 percent of the U.S. population.
Aside from these places where marijuana is legal for medical or non-medical use, additional states and municipalities have embarked on decriminalization efforts that generally allow people to avoid jail time for low-level possession, even as the drug remains formally prohibited.
That includes a renewed effort by officials in New York City to stop prosecuting low-level cannabis offenses. Mayor Bill de Blasio (D) said in 2014 that police would begin issuing summonses, rather than arrests, in those cases. But police have since continued to arrest an average of 17,000 people per year for possession, 87 percent of whom are black or Hispanic.
This summer, Manhattan District Attorney Cyrus Vance Jr. declared that, as of August 1, his department would no longer be prosecuting marijuana possession or smoking cases.
— Cyrus Vance, Jr. (@ManhattanDA) July 31, 2018
Brooklyn District Attorney Eric Gonzalez made a similar move. And the NYPD instituted its own policy of avoiding arrests for low-level cannabis offenses in many cases, an approach that went into effect on September 1.
While marijuana is technically decriminalized in all of New York State, a loophole in the law has allowed police to make arrests for cannabis that is in “public view.” If these new initiatives are successful, the 43 percent of New York State residents who reside within New York City will have a little more freedom.
Which caused us to wonder:
How many Americans now live somewhere they can carry around a joint in their pocket, without an accompanying medical cannabis recommendation, and not have to fear being arrested and sent to jail?
Marijuana Moment decided to tally up all the states and localities where possession of a joint containing the average one gram of weed is, at least in theory, not supposed to result in time behind bars, even if someone had multiple encounters with law enforcement for possession over time. We used NORML’s and the Marijuana Policy Project’s resources for local and state laws.
In addition to the nine legal states and the District of Columbia, at least some jurisdictions in 23 states, plus Guam and the U.S. Virgin Islands have passed laws to decriminalize marijuana possession. The Commonwealth of the Northern Mariana Islands has passed a legalization bill that is now awaiting the governor’s signature.
We define “decriminalized locations” as ones in which in most circumstances, possession by adults of small (and in some cases large) amounts of cannabis will result in either no penalty, or an infraction or misdemeanor charge plus fine, without the threat of jail time.
We found that at least 146 million Americans live in such legal or decriminalized locations, or 45 percent of the population of the United States. (An additional 1.2 million Michiganders in 16 cities are protected—but only if they are on private property, so are not counted in this total.)
The Impact of Multiple Apprehensions
In addition to the roughly 146 million Americans who live in places where they don’t have to worry about being locked up for low-level cannabis possession no matter how many times they are caught, a further 32.7 million live in a state, county or city where, if it is their first (or in some cases, second or third) time being apprehended, they would face only a civil infraction or misdemeanor charge without jail time. Subsequent offenses carry escalating penalties where incarceration is a possibility.
Several large cities within otherwise criminalized states have opted to enact local decriminalization ordinances. In Florida, for example, six cities and seven counties have decriminalized possession of up to 20 grams of cannabis. Thirty-nine percent of the state’s residents live in those locations. A sizable 34 percent of Texans live in a decriminalized jurisdiction, while 31 percent of New Mexico residents and 27 percent of Wisconsinites are protected by local laws.
If these states (Mississippi, Missouri, Nebraska, New York, North Carolina and Rhode Island) and localities are included, 55 percent of Americans who haven’t seen a possession charge before would be “safe” from the threat of being put behind bars for initial run-ins with the police over cannabis.
“Jailing people for consuming cannabis is not only unpopular, but widely viewed as a ludicrous idea,” Karen O’Keefe, state policies director for the Marijuana Policy Project (MPP), told Marijuana Moment. “It is no longer just voters calling for decriminalization, but also police chiefs, prosecutors, and other officials at every level of government.”
|Alaska||legal for adults|
|American Samoa||criminalized everywhere|
|Arkansas||some cities/counties decriminalized|
|California||legal for adults*|
|Colorado||legal for adults*|
|District of Columbia||legal for adults*|
|Florida||some cities/counties decriminalized|
|Georgia||some cities/counties decriminalized|
|Louisiana||two cities decriminalized|
|Maine||legal for adults*|
|Massachusetts||legal for adults*|
|Michigan||some cities/counties decriminalized|
|Mississippi||1st offense only decriminalized|
|Missouri||1st offense only, three cities decriminalized for subsequent offenses|
|Montana||one county first offense decriminalized|
|Nebraska||1st offense only decriminalized|
|Nevada||legal for adults*|
|New Jersey||criminalized everywhere|
|New Mexico||two cities decriminalized|
|New York||1st and 2nd offense decriminalized, New York City not prosecuting|
|North Carolina||1st offense only decriminalized (jail time suspended for 2nd to 5th offenses)|
|North Dakota||criminalized everywhere|
|Northern Mariana Islands||legalization bill awaiting governor’s signature|
|Ohio||decriminalized, some cities no penalty|
|Oregon||legal for adults*|
|Pennsylvania||some cities decriminalized|
|Puerto Rico||illegal everywhere|
|Rhode Island||1st and second offense decriminalized|
|South Carolina||criminalized everywhere|
|South Dakota||criminalized everywhere|
|Texas||some cities/counties decriminalized|
|U.S. Virgin Islands||decriminalized|
|Vermont||legal for adults*|
|Washington||legal for adults*|
|West Virginia||criminalized everywhere|
|Wisconsin||some cities decriminalized|
*No jail time for those under 21
Decriminalization Often Still Involves Penalties
Decriminalized doesn’t mean “fine-free.” In New Hampshire, if you are caught possessing four times in three years, you won’t go to jail, but you could be fined up to $1,200. Several Wisconsin locales have passed laws where jail time is omitted, but you might have to shell out up to $1,000. Minnesota has a hefty fine of $1,000 if more than 1.4 grams of cannabis is found inside a vehicle (not secured in the trunk).
The patchwork of policies across the country and within individual states, and the unclear terminology often attached to these proposals (“decriminalization,” “lowest law enforcement priority,” “civil violation”) means that these laws are often poorly understood by consumers and inconsistently enforced by police. The uncertainty surrounding those terms and the policies they apply to also meant that Marijuana Moment had to make some decisions about which jurisdictions to include in our analysis; generally, we counted places where the clear intent of policymakers was to let people avoid jail time for possessing small amounts of cannabis in most cases.
A further wrinkle is the fact that in many municipalities that have enacted decriminalization ordinances, local police can continue to enforce and charge people under overarching state marijuana criminalization laws, and state law enforcement agencies can of course continue to bring charges that come with jail time. People living in or visiting those cities shouldn’t necessarily be too brazen about possessing small amounts of cannabis—or consuming it in public, which is legal exactly nowhere.
“The rate of local governments acknowledging the futility of marijuana criminalization has accelerated greatly in the last few years,” Justin Strekal, political director for NORML, told Marijuana Moment. “But sadistically, many in law enforcement still will seek any justification possible to escalate a confrontation with a civilian that they have made a personal judgement upon—and can still rely on state-level criminalization statutes to do so. While the policy of local decriminalization is a step in the right direction, even in those jurisdictions, many consumers still live under threat by uniformed officers who allegedly are sworn to protect and serve those very communities.”
What’s more, in some “decriminalized” jurisdictions, a conviction still may result in a criminal record which can carry life-altering collateral consequences—including making it harder to get employment or housing—even if time behind bars isn’t a possibility.
It should also be noted that some states where adult-use sales have been legalized actually have more stringent possession laws than states that have merely decriminalized possession. In Colorado, for example, penalties—including jail time—are on the books for possession of more than two ounces. In Ohio, where cannabis prohibition is still in effect, up to 100 grams (roughly 3.5 ounces) is a misdemeanor with no incarceration.
“While public policy and the public’s perceptions are moving in the right direction, there is still a tremendous amount of work to be done,” O’Keefe, of MPP, said. “Marijuana is still illegal in 41 states, and consumers are still subject to potential jail time and life-altering criminal records in about half of U.S. jurisdictions.”
The Big Cities
Citizens and visitors to any county in 18 states, Puerto Rico and American Samoa face jail time for any amount of cannabis on their person. But possession of a joint is legal or effectively decriminalized in 24 of the 35 largest cities in the United States:
|City||State||Population (July 2017
|New York||New York||8,622,698||Y|
|Charlotte||North Carolina||859,035||Y (first-strike)|
|Washington||District of Columbia||693,972||Y|
|Detroit||Michigan||673,104||On 2018 ballot|
The totals in Marijuana Moment’s analysis seem poised to grow later this year and into 2019 as more cities and states vote on reform measures. In November alone, Michigan and North Dakota have legalization measures on the ballot, while Missouri and Utah voters will consider medical cannabis initiatives.
GOP Congressman Files Bill To Protect Veterans Who Use Medical Marijuana From Losing Benefits
A Republican congressman has filed the second piece of marijuana reform legislation to be introduced so far in the new 117th Congress—this one aimed at ensuring that military veterans aren’t penalized for using medical cannabis in compliance with state law.
The proposal from Rep. Greg Steube (R-FL), who filed a more expansive version of the measure last year, would also codify that U.S. Department of Veterans Affairs (VA) doctors are allowed to discuss the risks and benefits of marijuana with their patients.
VA doctors are currently permitted to discuss cannabis with patients and document their usage in medical records, and those veteran patients are already shielded by agency policy from losing their benefits for marijuana use—but the new bill would enshrine these policies into federal statute so they could not be administratively changed in the future.
That said, the version Steube introduced last year contained a notable provision that further allowed VA physicians to formally fill out written recommendations for marijuana.
But that language was omitted from this year’s bill, which could create barriers to access given that most state medical cannabis programs require a written recommendation, meaning many veterans would have to outsource their healthcare to a non-VA provider in order to qualify for legal access to marijuana.
Carson Steelman, communications director in Steube’s office, told Marijuana Moment that removing that component was politically necessary to advance the previous version through a House committee last year as an amendment to another bill.
“This bill was able to pass through markup with the removal of that portion,” he said. “Many members had concerns regarding it so in order to move this bill swiftly this Congress, we introduced it without that portion.”
Doug Distaso, executive director of the Veterans Cannabis Project, applauded Steube for the overall bill, saying that “we consistently see, on a daily basis, a denial of veteran benefits ranging from medical prescriptions to VA loans, solely because a veteran is participating in a state-approved marijuana program or working in the cannabis industry.”
“However, we are disappointed that specific language on Veterans Affairs provider-issued cannabis recommendations was removed from this bill, since these are the providers upon whom veterans rely for full, integrated treatment and care—including cannabis,” he told Marijuana Moment.
But while the absence of language around discussing and recommending medical marijuana isn’t ideal from advocates’ perspective, the bill would still be a modest step for veterans, making it so VA could not move to deny them benefits for using cannabis in accordance with state law.
The Veterans Cannabis Use for Safe Healing Act had 19 cosponsors last session, including eight Republicans and 11 Democrats.
This is the second piece of marijuana reform legislation that’s been introduced so far in the new Congress, both of which are sponsored by Steube. His first bill would simply require that cannabis be moved from Schedule I to Schedule III of the Controlled Substances Act—a move that the congressman said would free up research into the plant.
That proposal is identical to legislation he filed last year.
While rescheduling is backed by President Joe Biden, who remains opposed to adult-use legalization, it’s not the reform that advocates are getting behind. There are high hopes that a more comprehensive completely remove marijuana from the CSA—while promoting social equity—will move through the 117th Congress.
A bill to accomplish that cleared the U.S. House of Representatives last year, but it died in the GOP-controlled Senate. Now that Democrats have control of both chambers, activists are waiting for the legislation to be taken back up with a better chance of making it to Biden’s desk.
That bill—the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act—was sponsored by now-Vice President Kamala Harris, though she’s indicated that she would not necessarily push the president to adopt a pro-legalization position.
Read the text of the veterans-focused marijuana bill below:
Anti-Marijuana Lawmaker Files Legalization Bill In North Dakota To Avoid Activist Ballot Measure
North Dakota’s secretary of state on Friday approved the format of a proposed marijuana initiative, clearing the way for activists to collect signatures to place it on the 2022 ballot. Meanwhile, a Republican lawmaker is pushing a cannabis legalization bill he introduced even though he does not support the underling policy change.
Rather, Rep. Jason Dockter (R) said he recognizes the seeming inevitability of legal marijuana reaching the state as more neighboring jurisdictions enact reform and as activists gain momentum for their agenda. If the state is going to enact legalization, he wants the legislature to dictate what that program looks like instead of leaving it in the hands of advocacy groups.
Dockter’s House Bill 1420 would allow adults 21 and older to possess and purchase up to one ounce of cannabis for personal use, but home cultivation would not be allowed.
Licensed cultivation facilities that provide cannabis products to retailers “may grow an amount of marijuana sufficient to meet the demands of the public.”
Under the proposal, legal cannabis sales would begin on February 1, 2022.
The bill is being supported by the pro-reform campaign Legalize ND. The group placed a legalization measure on the 2018 ballot that was defeated by voters. They tried to qualify another initiative last year but signature gathering complications caused by the coronavirus pandemic got in the way.
It’s not clear if they will now still pursue previously announced plans for 2022 in light of the new bill, which they said they are “proud of” and is the result of engaging lawmakers in more than six months’ worth of conversations.
Meanwhile, a separate activist group has already filed its own 2022 legal marijuana measure that would make it so adults could possess marijuana and grow up to 12 plants (up to six of which could be mature). Secretary of State Al Jaeger said on Friday that the group can begin working to gather the 26,904 valid signatures from registered voters they will need to place the measure on the ballot.
“I am glad the North Dakota legislature is coming to the realization that legalization will move forward with or without them,” Jody Vetter, chairwoman for that effort, the ND for Freedom of Cannabis Act, told Marijuana Moment.
She added that while the Dockter’s bill is “a step in the right direction toward ending prohibition, there are concerns,” pointing to the lack of legal home cultivation and remaining criminal charges for certain cannabis-related activity.
“Criminal charges surrounding possession should only apply if someone is found to be selling cannabis without proper license or contributing to minors,” Vetter said. “We are moving forward with the ND For Freedom of Cannabis Act. Home growing is essential for any legal program and an overwhelming majority of North Dakotans are ready to stop criminally charging citizens for simply possessing cannabis.”
Jared Moffat, state campaigns manager for the national Marijuana Policy Project, told Marijuana Moment that “though this isn’t an ideal legalization bill, it’s a significant testament to the strength of our movement that legalization opponents are now preemptively filing their own legislation to legalize and regulate marijuana for adults.”
“These lawmakers are aware that a majority of their constituents support legalization, and you have to give them some credit for acknowledging that,” he said.
The bill contains a number of restrictions on labeling and advertising, as well as penalties for impaired driving. A health council would be tasked with developing further regulations on issues such as the allowable amount of THC in edibles and testing standards.
“I’m not for [legalization] at all, but I understand that it’s coming, and we have to address the issue,” Dockter told Inforum. “I’m trying something different in government—we’re trying to be proactive and not be reactive.”
House Majority Leader Chet Pollert said that he’s not “a marijuana person,” but he acknowledged that cannabis legalization is coming. While he would have previously been inclined to oppose Dockter’s bill, Pollert said voter approval of a legalization initiative in South Dakota has given him pause, adding that the legislature should “take a long, hard look” at the policy change.
Neighboring Montana also moved to legalize marijuana for adult use during the November election, adding to the regional pressure to get on board. Canada, which also borders the state, has a national legal cannabis market.
North Dakota voters approved a medical cannabis ballot measure in 2016.
Aside from the new broad legalization legislation, state lawmakers also recently introduced a separate bill to significantly expand the decriminalization of marijuana possession in the state. The proposal, which was filed last week, would build on an initial cannabis decriminalization law that was enacted in 2019.
Read the North Dakota cannabis legalization bill below:
Photo courtesy of Philip Steffan.
Bill To Allow Medical Marijuana Use At Hotels And Airbnbs Filed In Missouri
Hotels, Airbnbs and other lodging facilities in Missouri would be allowed to let medical marijuana patients consume cannabis on their properties under a recently filed bill.
The legislation, titled the “Reduction of Illegal Public Consumption by Allowing for Compassionate Access to Medical Marijuana Act,” would require the state Department of Health and Senior Services to create a new “medical marijuana lodging establishment” license for the facilities. They would have to submit an application and a $50 fee to the agency in order to obtain the new approval.
Once licensed, lodging facilities would have to follow certain rules such as confirming that guests are registered medical cannabis patients, posting signage that says marijuana can be consumed on the property and ensuring that consumption areas are at least 25 feet away from sections where its prohibited.
Places that knowingly permit cannabis to be used without a license would be subject to a $1,000 fine for a first offense, $2,000 for a second, $5,000 for a third and the suspension of their business license for a fourth.
Marijuana Moment is already tracking more than 400 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
Theoretically, if this bill is approved, it could promote tourism in the state, as it specifically allows hotels and other facilities to accept out-of-state medical cannabis certifications for guests.
There’s a similar policy on the books in Colorado, where a bill providing for social consumption site licenses was signed last year.
In a new related study, researchers took a look at the prevalence of Airbnbs allowing marijuana consumptions in Denver and found that it’s surprisingly common—much more so than for tobacco use.
“A substantial number of Airbnb listings in Denver, Colorado permit cannabis use and venues permitting cannabis use may be more likely to also permit tobacco smoking,” the abstract says.
About one-in-four facilities included details about their marijuana policy in the listing, and 76 percent of those permitted cannabis use while 31 percent let guests use tobacco.
The focus of the study, published this month in the Journal of Psychoactive Drugs, was to analyze indoor clear air issues related to marijuana at Airbnbs. It concluded that the facilities should “consider including cannabis use in house rules in jurisdictions that have legalized cannabis to help guests identify spaces with clean air.”
Missouri’s marijuana laws might not be as progressive as Colorado’s, but a Republican lawmaker did file a joint resolution last month that calls for adult-use legalization to be placed before voters on the 2022 ballot.
Photo courtesy of Martin Alonso.