Cannabis Overview: Legalization & Decriminalization

Legalization

Eighteen states, along with two territories and the District of Columbia, have legalized the possession of small amounts of cannabis (marijuana) for recreational use by adults.

In late June 2021, Connecticut became the most recent state to approve recreational cannabis through the passage of SB 1201.

While certain provisions of the bill will take time to go into effect, adults aged 21 and older became eligible to use cannabis recreationally starting July 1, 2021.

In Virginia, the legislature approved the governor’s proposed amendments to HB 2312 on April 7, 2021.

These changes accelerated the timeline for implementing the law, which legalizes recreational cannabis use and establishes a regulated commercial market in the state.

New York also legalized cannabis during its 2021 legislative session when the governor signed AB 1248 into law.

Similarly, New Mexico introduced its Cannabis Regulation Act during a special legislative session on March 30, 2021.

The bill, HB 2a, was subsequently signed into law by the governor.

In the 2020 elections, 54% of South Dakota voters approved Constitutional Amendment A.

Shortly after its passage, the amendment faced a legal challenge. On February 8, 2021, Circuit Judge Christina Klinger ruled that the measure was unconstitutional.

The map below provides an overview of cannabis policies across the states as of June 2021.

History

In 2012, Colorado and Washington approved measures legalizing recreational marijuana for adult use.

This was followed by Alaska, Oregon, and the District of Columbia in the fall of 2014.

In 2015, Ohio voters rejected a ballot measure that proposed the commercial production and sale of recreational marijuana.

On November 8, 2016, voters in four states—California, Maine, Massachusetts, and Nevada—approved recreational marijuana legalization, while Arizona voters rejected a similar measure.

In 2018, Michigan voters passed “Proposal 1” with a 56% to 44% margin, legalizing, regulating, and taxing marijuana in the state.

That same year, Vermont became the first state to legalize marijuana for adult use through legislative action rather than a ballot initiative, with the law taking effect on July 1, 2018.

In May 2019, the Illinois General Assembly passed the Cannabis Regulation and Tax Act (House Bill 1438), which was signed into law by the governor in June.

More recently, New Jersey legalized certain personal use of marijuana through AB 21 and removed it from the list of Schedule I drugs.

Study Efforts

On March 16, 2021, NPR’s “Planet Money” published a newsletter called “The Data On Legalizing Weed.”

It explores various studies on crime rates, traffic accidents, pricing, employment, state budgets, and workers’ compensation programs.

In 2020, Virginia passed SJR 67, marking the state’s first step towards legalizing cannabis for recreational use, in line with other states.

This resolution initiated a study to develop recommendations on how to implement legalization by July 1, 2022.

In 2018, study bills were introduced in Hawaii, Massachusetts, New Hampshire, New Mexico, North Dakota, and Rhode Island.

The proposals in New Hampshire and Rhode Island were approved, leading to the creation of commissions to examine the legalization, regulation, and taxation of marijuana.

Repeal Efforts

In 2018, bills were introduced in Washington to repeal voter-approved initiatives legalizing adult-use marijuana, but they failed to pass.

On February 8, 2021, Circuit Judge Christina Klinger ruled that South Dakota’s Constitutional Amendment A was unconstitutional.

Federalism

Recently, Michigan (HR 151) called on the U.S. Congress to clarify its stance on marijuana legality under the Federal Controlled Substances Act.

In 2018, several state legislatures considered bills addressing the federal government’s role in marijuana policy.

California passed a resolution urging Congress to approve legislation that would enable financial institutions to serve the cannabis industry.

Additionally, bills or resolutions introduced in Alaska, California, Georgia, Iowa, Massachusetts, Michigan, New Jersey, and Pennsylvania sought to have Congress reclassify marijuana or grant states greater authority over marijuana policy.

In 2018, the National Conference of State Legislatures (NCSL) sent a letter to Congress supporting a recently introduced bill aimed at protecting state sovereignty in marijuana regulation.

NCSL also advocated for language preventing the Department of Justice from using federal funds to enforce actions against states with legal medical marijuana programs.

Furthermore, NCSL’s Law, Criminal Justice, and Public Safety Committee recently adopted a policy resolution on cannabis.

Under federal law, marijuana remains classified as a Schedule I illegal substance.

Decriminalization

In twenty-seven states and the District of Columbia, possessing small amounts of marijuana has been decriminalized.

This typically means that having limited quantities for personal use is considered a civil or local infraction rather than a state crime, or at most, a low-level misdemeanor without the possibility of jail time.

Prior to the successful legalization ballot measure in 2014, the District of Columbia passed legislation—later approved by Congress—that classified the possession or non-commercial transfer of up to one ounce of marijuana as a civil violation.

Decriminalization Enactments 2020

• In Delaware (S 45), juveniles found in possession of, using, or consuming a personal-use quantity of marijuana will face a civil violation.
• New Jersey (AB 5342) updates the penalties for underage possession or use of different types of cannabis.
• Virginia’s HB 972 decriminalizes the simple possession of marijuana and imposes a civil penalty for individuals who are found smoking, consuming, or otherwise ingesting marijuana in a public place at the time of the offense.

Decriminalization Enactments 2013 – 2019

• In 2019, Hawaii approved House Bill 1383. When the bill takes effect on January 11, 2020, possessing three grams or less of marijuana will result in a $130 fine.
• In New Mexico, HB 323 was passed in 2019 and took effect on July 1 of the same year. Under this law, possessing up to half an ounce of marijuana results in a $50 civil fine rather than the possibility of jail time.
• In 2019, North Dakota enacted House Bill 1050, which took effect on August 1 of that year. The legislation reclassified the possession of up to half an ounce of marijuana as an infraction, punishable by a maximum fine of $1,000.
• In 2017, New Hampshire decriminalized small amounts of marijuana through HB 640, becoming the most recent state to do so. The penalties for possessing up to three-quarters of an ounce were lowered from $2,000 to just $100 for a first or second offense. A year earlier, in 2016, the state had enacted SB 498, which classified possession of one ounce or less as an unspecified misdemeanor but did not fully decriminalize it.
• In 2016, the Illinois General Assembly passed, and the governor approved, legislation (SB 2228) to decriminalize possession of 10 grams or less of marijuana, reducing it to a civil offense that does not lead to a criminal record.
• In early 2016, the Maryland General Assembly overturned the governor’s veto of a 2015 law (SB 517) that decriminalized marijuana paraphernalia and introduced civil fines of $500 for public cannabis consumption.
• In 2019, New York passed Senate Bill 6589, reducing the penalty for possessing less than one ounce to a violation carrying a $200 fine.

Penalties

Other states have taken measures to lessen criminal penalties for marijuana offenses, aligning with a broader trend of mitigating the negative impacts of certain marijuana-related crimes.

Over the past decade, at least 16 states have enacted laws modifying marijuana-related penalties.

Key legislation in 2019 and 2020 that impacted marijuana penalties included:

• Delaware (S 47) recently revised its drug code to promote fairer enforcement. The changes include removing geographic-based sentencing enhancements that disproportionately affected urban residents compared to those in suburban and rural areas.
• The law also reduces the number of weight-based offense tiers and increases penalties for distributing cannabis on school property during school hours. However, enrolled students are exempt from this violation.
• In Illinois (H 160), penalties are increased for the distribution of cannabis within a school or on school grounds.

Key legislation in 2017 that impacted marijuana penalties included:

• Kansas (SB 112) lowered the severity of unlawful possession of drug paraphernalia from a Class A to a Class B non-person misdemeanor.
• Montana’s comprehensive sentencing bill (HB 133) includes measures that reclassify the possession of under 60 grams of marijuana as a misdemeanor, eliminating jail time as a penalty.
• In North Dakota, HB 1041 lowered the charge for drug possession, including marijuana, from a Class C felony to a Class A misdemeanor for first-time offenders and made probation the default sentence for low-level, nonviolent felonies. Additionally, HB 1269 reduced mandatory minimum sentences for controlled substances, including marijuana.
• To ensure consistency in state law following the passage of Measure 91, Oregon passed SB 302, which eliminated certain penalties for the unlawful possession of marijuana.
• West Virginia (HB 2579) enhanced the penalties for bringing controlled substances into the state but established a separate, reduced penalty for offenses related to marijuana.

Key legislation in 2016 that impacted marijuana penalties included:

• Vermont’s HB 858 increased the threshold amount of unlawfully sold or distributed marijuana that carries a prison sentence to one ounce.
• Indiana lawmakers passed SB 290, a law establishing specific drug quantities that can lead to a conviction for possession with intent to deliver without requiring further evidence of trafficking. For marijuana, the threshold is set at 10 pounds or more.
• A Maryland law (HB 565) classified the possession of 10 grams or more of marijuana as a misdemeanor.
• In Minnesota, legislation (SB 3481) adjusted the threshold quantities for various drugs, including marijuana. The law also introduced new possession offenses for certain amounts of marijuana plants and established a gross misdemeanor charge for possession involving trace amounts of drugs.
• Oklahoma HB 2479 reduced sentences for various drug crimes, including marijuana possession.
• A law enacted in Louisiana reduced criminal penalties for certain drug paraphernalia offenses and eliminated these offenses as qualifying convictions for sentence enhancements.
• Maryland’s Justice Reinvestment Act (HB 1312) focused on mandatory penalties related to the possession and distribution of 50 pounds or more of marijuana.
• A Delaware law (HB 332) permits probation before judgment for misdemeanor marijuana offenses.

Key legislation in 2015 that impacted marijuana penalties included:

• Utah legislators passed comprehensive sentencing and corrections reform (HB 348), which reclassified most marijuana offenses as misdemeanors.
• A Connecticut law (HB 7104) introduced a revised penalty structure, making possession of half an ounce or more of marijuana a Class A misdemeanor instead of a felony. Additionally, possession of other drugs was reclassified as a misdemeanor rather than a felony, with courts having discretion in handling repeat offenses.
• A 2015 Wyoming law (SB 38) allowed for deferred prosecution for first-time offenses involving the use or influence of controlled substances, including marijuana.
• The North Dakota Legislative Assembly passed House Bill 1394, which downgraded the possession of less than one ounce of marijuana from a Class A misdemeanor to a Class B misdemeanor.
• Louisiana’s approved legislation (HB 149) establishes a system of graduated penalties for marijuana possession, determined by the amount possessed and the number of prior offenses.
• A 2015 Texas law (HB 642) grants judges the authority to mandate drug education programs for minors caught in possession of marijuana.

Key legislation enacted in 2014 that impacted marijuana penalties included:

• A Mississippi law (HB 585) focused on drug courts and revised penalties for specific drug possession offenses, including marijuana.
• Utah (SB 205) states that enhanced sentences for certain drug possession offenses, including marijuana, cannot exceed a second-degree felony.
• Oklahoma legislation (SB 1875) permits a deferred sentence for specific drug offenders, including those charged with marijuana offenses, and ensures no conviction record upon successfully meeting all required conditions.

Record Clearing

Forty-one states, two U.S. territories, and the District of Columbia have laws allowing for record clearing, which may apply to cannabis-related offenses.

Among them, seven states have laws that specifically focus on clearing records for cannabis offenses.

For more details, refer to our Cannabis Record Clearing resource.

Significant legislation in 2020 related to expungement:

• Michigan HB 4982 amends the process for expunging certain marijuana-related offenses.
• In New Jersey, AB 1897 highlights the availability of expungement relief for cannabis-related offenses.

Significant legislation in 2019 related to expungement:

• Under Illinois’ 2019 Cannabis Regulation and Tax Act, the state can automatically grant clemency to individuals convicted of possessing up to 30 grams of cannabis. Additionally, those convicted of possessing between 30 and 500 grams can petition the court to have their charges overturned.
• In 2019, New Hampshire passed House Bill 399, allowing individuals convicted of possessing up to three-quarters of an ounce of cannabis to request the court to annul their convictions.
• If the prosecuting attorney does not oppose the request within ten days, the court will approve the petition.
• Nevada enacted a comprehensive decriminalization measure that covered marijuana-related offenses. Under Assembly Bill 192, individuals with misdemeanor cannabis possession convictions can request to have their records expunged.
• In 2019, the Washington State Legislature approved Senate Bill 5605, which allows for the vacating of misdemeanor marijuana convictions.

Significant legislation in 2018 related to expungement:

• California’s AB 1793 addresses the expungement of criminal records related to marijuana convictions. Proposition 64, which legalized recreational marijuana use for individuals 21 and older, also included provisions for resentencing and the destruction of records for past marijuana offenses. However, it did not outline a specific process for expungement. AB 1793 established this process by requiring the Department of Justice to review state criminal history records from 1975 to 2016 and identify eligible cases. Prosecutors are then notified of these cases and have one year to contest any they believe should not qualify for resentencing, dismissal, or expungement.
• In Massachusetts, under M.G.L. c. 276, § 100A and M.G.L. c. 94G, § 13, records for offenses that are no longer considered crimes can be sealed. As a result, a prior criminal case for possession of up to 2 ounces of marijuana can be sealed immediately, with no waiting period.
• In 2017, Delaware passed Senate Bill 197, allowing for the automatic expungement of arrest and conviction records for individuals charged with or convicted of specific marijuana offenses before December 18, 2015.

Significant legislation in 2017 related to expungement:

• Colorado House Bill 1266 permits individuals convicted of misdemeanor marijuana use or possession to request the sealing of their criminal records, provided the offense would not have been considered a crime if committed on or after December 10, 2012.
• In Maryland, SB 949 shortened the waiting period for expunging a marijuana possession offense from 10 years to four years.
• The Nevada Assembly and Senate approved a bill (AB 259) that would have allowed individuals with criminal convictions for possessing one ounce or less of marijuana before January 1, 2017, to have their convictions overturned. However, the governor vetoed the measure.

Significant legislation in 2016 related to expungement:

• Missouri’s SB 588 broadens eligibility for expungement, shortens waiting periods, and establishes a presumption in favor of expungement if specific criteria are met. This applies to all misdemeanors and numerous felonies, including but not limited to marijuana-related offenses.
• In New Hampshire, SB 391 was amended to reduce the waiting period to 2 years for petitioning to annul a misdemeanor offense related to marijuana or hashish.
• An Oregon law (SB1598) directed courts on issuing expungement orders for marijuana convictions involving offenses that are no longer considered crimes.

Significant legislation in 2015 related to expungement:

• After the successful legalization ballot measure in Oregon, a new law (SB 364) now requires courts to consider expunging records of certain misdemeanor marijuana offenses once probation has been successfully completed. Additionally, another Oregon law (SB 844) allows for the expungement of adjudications related to marijuana possession crimes.
• Maryland (SB 651) and Vermont (SB 115) have enacted laws permitting the expungement of offenses when the underlying conduct is no longer considered a crime. Likewise, a Rhode Island law (SB 518) ensures that records of marijuana violations remain inaccessible to the public.