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Decriminalization vs Legalization: What's the Difference?

Aug 30, 2022 10:00:00 AM

Nowadays we hear a lot about “legal marijuana”, whether medical or recreational. But this is at the state level where state-level governments - often driven by referendum-type direct voting from the citizens themselves - have adopted legal marijuana allowing medical and in some states recreational users to enjoy the benefits of weed.

people protesting for marijuana rescheduling

Though these state-level laws are technically in conflict with the current federal law marijuana prohibition laws, recent US administrations have issued memos and stated that the feds won’t go after users, patients, growers, or businesses associated with marijuana in those states where it’s legal.

Feds Won't Bother You

Great, right?? Well, yes but not nearly enough from the federal government to really make a difference. These memos seem to serve as almost placeholders for real legislation that will make a difference - differences like …

  • releasing people who are incarcerated for minor marijuana possession
  • allowing marijuana-related businesses to hold bank accounts and operated in the financial sphere like other businesses
  • paving the way for wider and more funded research
  • more freedom for MMJ patients from federal laws where there is no correlation (like gun ownership or tacking on marijuana possession charges for other non-related federal charges)
  • and more.

Brief history of marijuana and federal laws

Marijuana has been on the federal government’s radar since the beginning of the 20th century, along with alcohol prohibition and other faith-based, puritan efforts to rid the US of a number of vices. The parent plant of marijuana, hemp, was also on the government’s radar around that time as well since its fibers were an inexpensive, easy-to-grow substitute for nylon fiber that was (at the time) produced by the DuPont family, one of the wealthiest and most politically influential families in the country.

Fast forward to the late 1960s and early 70s and the federal government began clamping down on marijuana in its (disastrous) ‘War on Drugs" campaign. In 1970, repealing other long-standing laws in an effort to reorganize the government’s overall drug policy, all drugs were given a classification. This classification (erroneously) categorized marijuana at the highest level - Schedule 1 - which represents (again, incorrectly) the most addictive drugs with the least amount of medical application.

dupont logo

Since that time, grassroots efforts have been underway to get marijuana at least rescheduled and preferably - to some degree - legalize marijuana on the federal level. But what are the different levels of marijuana legality? There are many more implications of each, but here is a high-level overview of the different types/levels of MJ legality are …

Different levels of legality (on the federal level)

  • Fully illegal, federal efforts to enforce - This was how marijuana was for decades, particularly starting in the 1970s. Fortunately, the federal attitude on cannabis has shifted drastically, even if they aren’t able to pass any effective legislation (more on that later in this post).

  • Fully illegal, no federal efforts to enforce - This is where we are now. Technically, marijuana is still illegal at the federal level. While there have been various memos/announcements from different administrations stating the feds won’t interfere with MJ-related people or businesses in legal states, there are still restrictions like you cannot cross or mail things across state lines and no federal funds or endorsements for research.

  • Reschedule - The federal government would reclassify marijuana to more appropriate scheduling. The current scheduling has MJ on the same list as heroin, LSD, and peyote (the last two, in my opinion, should also be reclassified, but that is not for a medical MJ dispensary’s blog!), and note: cocaine is Schedule 2!
    • This would get the wheels turning for more scientific research, MRBs (marijuana-related businesses) having bank accounts and participating in the financial markets, and also disassociate federal laws with marijuana (i.e. gun ownership for medical marijuana patients).

  • Decriminalized - Even without a rescheduling of marijuana, the federal government could decriminalize marijuana which would have some of the same positive effects of rescheduling. However, some of the federal laws that specifically say ‘Schedule 1’ would have to be rewritten until the rescheduling was done.

  • Expunging of criminal records - Along with any action on state or federal levels, expunging criminal records should go along with it by default. This would be releasing people who are in jail or prison for small marijuana possession and erasing their criminal records of these charges. According to the Washington Post, there are currently 2.3 million people currently serving time for non-violent, marijuana-related charges.
     
    • Essentially what medical users are doing now in legal states landed someone else in the slammer just a few years back. This needs to change and seems to be changing (slowly)
  • Fully legal with restrictions - Fully legal would be the government allowing the medical and recreation use of marijuana with no negative legal repercussions, but with restrictions. Restrictions could be limits on how much you can possess, the amount of THC that’s in whatever product a company is producing or person is producing, how much you can buy per day, if and how much you can grow, where you can purchase marijuana and other such limitations.
     
    • If the federal government ever goes as far as full legalization, still having restrictions will more than likely be as far as they really go.

  • Fully legal without restrictions - This means that marijuana is fully legal with no restrictions mentioned above. The problem with this is there would be no difference between medical and recreational marijuana, leaving patients in the dark as to how much of what kind of product in what THC/CBD/etc. ratio.

While proponents of full legalization want there to be no restrictions on anything marijuana - especially allowing people to grow as much as they want - this level of legalization doesn’t give the medical application of marijuana enough thought. It doesn’t really matter though, since this level of legalization is highly, highly unlikely in the US.

Why can’t the federal government move faster?

Surprisingly moving towards marijuana law reform is supported by (enough of) both sides of the political fence in congress to get things moving along. There have been numerous acts and laws that have been introduced but in true Washington DC style, there are details that both sides and both chambers (house of representatives and the senate) can agree on, and in covert DC style, each side has tried to slip in other non-MJ related legislation. So partisanship has been the main culprit of the slow movement, and also …

The current crises in the world, the ongoing COVID-19 pandemic, and the unprovoked Russian invasion of Ukraine have stolen the spotlight for this and other not-as-urgent legislation.

 

Joy San Diego
Written by Joy San Diego

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