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.
Colorado Governor Grants Thousands Of Marijuana Pardons With New Clemency Powers
The governor of Colorado on Thursday signed an executive order granting nearly 3,000 pardons for people convicted of possession one ounce of less of marijuana.
Pursuant to a new law that he signed in June, Gov. Jared Polis (D) made the pardons on the first day the policy took effect. While the law gives him authority to grant clemency for cases of possession of up to two ounces, his office explained that he limited it to one ounce because that’s the legal possession limit under Colorado’s cannabis program.
“We are finally cleaning up some of the inequities of the past by pardoning 2,732 convictions for Coloradans who simply had an ounce of marijuana or less,” Polis said in a press release. “It’s ridiculous how being written up for smoking a joint in the 1970’s has followed some Coloradans throughout their lives and gotten in the way of their success.”
Thank you to @repjamescoleman, Sen. Julie Gonzales (@SenadoraJulie), and Sen. @VickiMarble for sponsoring this historic bill. Rep. @leslieherod and Rep. Jonathan Singer (@Singer4BoCo) were also champions of passing this legislation.
— Governor Jared Polis (@GovofCO) October 1, 2020
Convictions impacted by the governor’s action range from those that took place in 1978 though 2012.
“Too many Coloradans have been followed their entire lives by a conviction for something that is no longer a crime, and these convictions have impacted their job status, housing, and countless other areas of their lives,” he added. “Today we are taking this step toward creating a more just system and breaking down barriers to help transform people’s lives as well as coming to terms with one aspect of the past, failed policy of marijuana prohibition.”
The new law allows the governor to use his clemency power for cannabis offenses without consulting with prosecutors and judges involved in the cases, as is typically required under statute.
“For the individuals pardoned in this Executive Order, all rights of citizenship associated with the pardoned conviction are restored in full without condition,” the order states. “All civil disabilities and public sufferings associated with the pardoned conviction are removed.”
People who are eligible for the pardons don’t have to do anything to clear their own records; it’s automated, and individuals can check a website to see if they’ve been processed.
Those who have municipal marijuana convictions, or who were arrested or given a summons, don’t qualify for the pardon. The action only applies to state-level convictions.
A frequently asked questions document states that while Polis has declined for now to use the full extend of his pardon power by applying it to people with convictions of up one to two ounces, the “administration will continue to evaluate” cases that could receive clemency. A representative from the governor’s office did not immediately respond to a question from Marijuana Moment about whether plans are imminent to expand the pardon pool.
The governor’s action also calls on the state Department of Public Health to “develop a process to indicate on criminal background checks which individuals’ convictions have been pardoned pursuant to this Executive Order.”
Colorado isn’t alone in pursuing opportunities to enact marijuana-focused restorative justice policies.
In June, more than 15,000 people who were convicted for low-level marijuana possession in Nevada were automatically pardoned under a resolution from the governor.
Polis told Westword that beyond the practical benefits of having these records cleared, the move is “also symbolically important, because it shows that as a state and nation, we’re coming to terms with the incorrect discriminatory laws of the past that penalized people for possession of small amounts of marijuana.”
Photo courtesy of Martin Alonso.
Marijuana Arrests Decline Nationally For First Time In Four Years, FBI Data Shows
Marijuana arrests in the U.S. declined in 2019 for the first time in four years, a new federal report shows.
While many expected the state-level legalization movement to reduce cannabis arrests as more markets went online, that wasn’t the case in 2016, 2017 or 2018, which each saw slight upticks in marijuana busts year-over-year. But last year there was a notable dip, the data published this week shows.
There were a total of 545,601 marijuana arrests in 2019—representing 35 percent of all drug arrests—according to FBI’s Uniform Crime Reporting program. That’s down from 663,367 the prior year and 659,700 in 2017.
Put another way, police across the country made a cannabis bust every 58 seconds on average last year. Of those arrests, 500,394 (92 percent) were for possession alone.
“A decline in cannabis related arrests is better than seeing an increase for a fourth year in a row, but the amount of these arrests is still abhorrent,” Marijuana Policy Project Executive Director Steve Hawkins told Marijuana Moment. “There is no reason to continue punishing adults for consuming a substance that is less harmful than alcohol. Arresting adult cannabis consumers has a dramatically disproportionate impact on communities of color, is a massive waste of law enforcement officials’ time and resources and does nothing to improve public health or safety.”
Overall, arrests for drug sales, manufacturing and possession amounted to 1,558,862 for the year—approximately 15 percent of all busts reported to FBI from local and state law enforcement agencies. That’s one new drug case every 20 seconds.
Before 2016, the country had seen a consistent decline in marijuana arrests for roughly a decade. It should be noted, however, that not all local police participate in the federal agency’s program, so these figures are not holistic.
Nonetheless, this data shows that American law enforcement carried out more arrests for marijuana alone than for murder, rape, robbery, burglary, fraud and embezzlement combined.
“At a time when a super-majority of Americans support marijuana legalization, law enforcement continues to harass otherwise law abiding citizens at an alarming rate,” NORML Political Director Justin Strekal told Marijuana Moment. “Now is the time for the public to collectively demand that enough is enough: end prohibition and expunge the criminal records to no longer hold people back from achieving their potential.”
While there’s no solitary factor that can explain the recent downward trend in cannabis cases, there are one-off trends that could inform the data. For example, marijuana possession arrests fell almost 30 percent in Texas from 2018 to 2019, and that seems to be connected to the legalization of hemp and resulting difficulties police have had in differentiating the still-illegal version of the cannabis crop from its newly legal non-intoxicating cousin.
At the federal level, prosecutions for marijuana trafficking declined in 2019, and drug possession cases overall saw an even more dramatic decline, according to a report published by the U.S. Sentencing Commission in March.
Federal prosecutions of drug-related crimes increased in 2019, but cases involving marijuana dropped by more than a quarter, according to an end-of-year report released by Supreme Court Chief Justice John Roberts in December.
A study released by the Cato Institute in 2018 found that “state-level marijuana legalization has significantly undercut marijuana smuggling.”
California Governor Approves Changes To Marijuana Banking And Labeling Laws
California Gov. Gavin Newsom (D) signed a handful of marijuana bills into law on Tuesday, making a series of small adjustments to the nation’s largest legal cannabis system. More sweeping proposals such as overhauling the state’s marijuana regulatory structure will have to wait until next year, the governor said.
Among the biggest of the new changes are revisions to banking and advertising laws. With many legal marijuana businesses are still unable to access financial services, Newsom signed a bill (AB 1525) to remove state penalties against banks that work with cannabis clients.
“This bill has the potential to increase the provisions of financial services to the legal cannabis industry,” Newsom wrote in a signing statement, “and for that reason, I support it.”
Democrats in Congress, meanwhile, have been working for months to remove obstacles to these businesses’ access to financial services at the federal level. A coronavirus relief bill released by House Democratic leaders on Monday is the latest piece of legislation to include marijuana banking protections. Past efforts to include such provisions have been scuttled by Senate Republicans.
In his signing statement on the banking bill, Newsom directed state cannabis regulators to establish rules meant to protect the privacy of marijuana businesses that seek financial services, urging that data be kept confidential and is used only “for the provision of financial services to support licensees.”
Another bill (SB 67) the governor signed on Tuesday will finally establish a cannabis appellation program, meant to indicate where marijuana is grown and how that might influence its character. The system is similar to how wine regions are regulated.
Under the new law, growers and processors under the new law will be forbidden from using the name of a city or other designated region in product marketing unless all of that product’s cannabis is grown in that region. Similar protections already apply at the county level.
For outdoor growers, the new law recognizes the importance of terrior—the unique combination of soil, sun and other environmental factors that can influence the character of a cannabis plant. For indoor growers, it provides a way to represent a hometown or cash in on regional cachet.
Most of the other new changes that the governor signed into law are relatively minor and will likely go unnoticed by consumers. One, for example, builds in more wiggle room on the amount of THC in edibles (AB 1458), while another would allow state-licensed cannabis testing labs to provide services to law enforcement (SB 1244).
The bills were approved by state lawmakers earlier this month, as the state’s legislative session drew to a close.
Other pieces of cannabis legislation passed by the legislature this session were met with the governor’s veto. On Tuesday, Newsom rejected a proposal (AB 1470) that would have allowed processors to submit unpackaged products to testing labs, which industry lobbyists said would reduce costs. Currently products must be submitted in their final form, complete with retail packaging. Newsom said the proposal “conflicts with current regulations…that prevent contaminated and unsafe products from entering the retail market.”
“While I support reducing packaging waste, allowing products to be tested not in their final form could result in consumer harm and have a disproportionate impact on small operators,” Newsom said in a veto statement.
Those changes to testing procedures should instead be considered next year, Newsom said, as part of a pending plan to streamline California’s cannabis licensing and regulatory agencies.
“I have directed my administration to consolidate the state regulatory agencies that currently enforce cannabis health and safety standards to pursue all appropriate measures to ease costs and reduce unnecessary packaging,” he wrote. “This proposal should be considered as part of that process.”
Newsom also last week vetoed a bill (AB 545) that would have begun to dissolve the state Bureau of Cannabis Control, which oversees the legal industry. In a statement, the governor called that legislation “premature” given his plans for broader reform.
“My Administration has proposed consolidating the regulatory authority currently divided between three state entities into one single department,” Newsom wrote, “which we hope to achieve next year in partnership with the Legislature.”
Earlier this month, the governor signed into law one of the industry’s top priorities for the year—a measure (AB 1872) that freezes state cannabis cultivation and excise taxes for the entirety of 2021. The law is intended to provide financial stability for cannabis businesses in California, where taxes on marijuana are among the highest in the nation.
The state’s leading marijuana trade group, the California Cannabis Industry Association (CCIA), applauded the governor’s moves. All the bills approved by Newsom this week had the industry group’s support.
“We thank Governor Newsom for prioritizing these bills, which seek to reduce regulatory burdens, improve enforcement, expand financial services and enhance the state’s cannabis appellation’s program,” CCIA Executive Director Lindsay Robinson said in a message to supporters on Wednesday. “Like so many, the cannabis industry has faced a series of unexpected challenges and setbacks in 2020. We look forward to continuing to work with the Newsom Administration, and the Legislature, as we pursue a robust policy agenda in 2021.”
Image element courtesy of Gage Skidmore