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.