Even though an increasing number of states continue to pass legislation legalizing cannabis for medicinal and recreational use, the laws governing this legislation leave many consumers, especially those who use this plant as their natural medicine, unsure regarding what exactly they can do within the boundaries of the law.
At the federal level, cannabis and most psychedelic drugs are “Schedule I” controlled substances,” which is supposed to mean “no currently accepted medical use and a high potential for abuse.” Hence, researching cannabis to ascertain its medicinal benefits can be tricky at best. Also, according to federal law, one cannot transport cannabis across state lines, consume it at any federal facility such as a national park, or take it on an Amtrak train or airport overseen by the TSA.
According to Sean Clancy of the Emerge Law Group, there are a few narrow exceptions to conducting research on Schedule 1 drugs. “It is theoretically possible to get DEA and FDA permission to research them, but not easy. The Multidisciplinary Association for Psychedelic Studies (MAPS) is doing some great work in this area though.”
Aside from research, under Right to Try Laws an “eligible investigational drug” can legally be given to an “eligible patient.” Clancy’s understanding is that psilocybin and MDMA, for example, check the boxes to qualify. One of his colleagues is leading a Right to Try case, aiming to allow psilocybin for dying patients. Also, some people consider Ketamine psychedelic, but as this drug is Schedule III, it can be legally prescribed.
Rise of the decriminalization of cannabis
Clancy describes decriminalizing a drug as simply the removal of criminal penalties around it without additional affirmative regulation. “The word “decriminalized” is used because drug possession penalties categorized for “crime” have been reduced or removed entirely under state law, depending on the amounts. But there are still non-criminal, civil violations that can be imposed by the state for small, personal possession amounts, similar to a parking ticket.”
While drug policy progress in cities such as Denver, Oakland, and Santa Cruz, are beneficial to those who use cannabis, these policies continue to cause confusion. As Clancy notes, “Those places just changed law enforcement policies and funding, while state criminal penalties still exist on the books, so they did not really decriminalize.”
Also, decriminalization only applies to cannabis. In 2020 Oregon became the first state to decriminalize all drugs. Clancy assessed Oregon’s Measure 110 as follows:
Measure 110 made Oregon the first state to decriminalize the personal possession of small amounts of any illegal drug. Critical concepts here are “personal possession” and “small amounts.” It is still a crime in Oregon to possess more than “small amounts” (based on amounts listed in the law itself) or to engage in activity that could be deemed a “commercial drug offense.” State law enforcement officials are still prosecuting those drug crimes. And of course federal law remains the same, so drug crimes that are substantial enough to catch federal prosecutors’ attention can still be brought in US federal court in the District of Oregon.
Under Measure 110, each substance is treated differently, based on volumes and weights. A “Class E violation” is a newly created category of penalty, punishable by a $100 fine. In lieu of a fine, a person charged with that violation may instead complete a health assessment at an addiction recovery center. Measure 110 also removes criminal penalty enhancements for possession of smaller amounts. Otherwise, “Class A misdemeanors” are still punishable by up to 364 days of imprisonment and a fine of up to $6,250.
Dangers of decriminalization
Once cannabis has been decriminalized in a given state, state licensing authorities (or others who evaluate applicants, for any reason) can no longer deny people based on a prior drug conviction. Also, once it is decriminalized, the state can then reallocate funds and attention used in prosecuting the War on Drugs toward rehabilitation and recovery services. This reallocation also enables law enforcement and the criminal justice system to give these cases the lowest priority.
As much Clancy favors drug policy progress, he acknowledges the reality that there are some very bad people who commit violence and earn huge profits from selling drugs and they don’t care about harming others. “I worry that full decriminalization would enable and empower those kinds of unscrupulous criminal actors, which could result in net harm to people.”
In Clancy’s assessment, “mere decriminalization seems to oversimplify society’s relationship with drugs.” He points to the lack of basic health and safety regulations for powerful mind-altering chemicals citing the existence of regulations for other items that can cause harm to consumers such as food, cars, and restaurants.
While the Biden administration has referenced the possibility of reclassifying cannabis as a Schedule II drug, Cannabis lawyer Aaron Pelley, an attorney with Cultiva Law focusing solely on cannabis law, does not see this as a viable solution. “To move cannabis into Schedule II means the drug is still dangerous. This is an insult to the intelligence of the people who use cannabis medicinally and the scientific community as a whole. If they were being sincere by following the evidence and the science, they would decriminalize cannabis.”
Instead, the Biden Administration appears to be ten years behind the curve, and in fact may be exacerbating the stigmatization of cannabis at the federal level. For example, as reported by LA Weekly, federal law enforcement agents and their partners arrested 25% more people for cannabis-related crimes in 2021, the first year of the Biden Administration.
Is cannabis legal?
Many people may assume that once cannabis is legalized in a particular state, they can do as they please when it comes to their personal use. According to Pelley, after reading that cannabis is legal in particular states, his clients often mistakingly assume they can grow cannabis plants. They fail to realize that not every state allows people to grow cannabis plants for personal use.
However, legalization simply means making affirmative laws to regulate a drug like alcohol beyond merely decriminalizing. Like alcohol, one has be over 21 to purchase cannabis. One needs a state license in order to buy these products, which can only be sold from outlets licensed by the state.
While the laws governing the sale of alcohol are known to consumers, the laws governing cannabis remain in a state of flux. Since regulations for growing, processing, and selling vary from state to state, consumers don’t know the laws for a particular state unless they look them up via a reputable site such as NORML or talk to a lawyer.
In Pelley’s estimation, the laws only permit decriminalization, not legalization. “There’s no state law where cannabis is treated like another plant such as a tomato.” Given the psychoactive nature of the plant, many advocates push for cannabis to be regulated similarly to alcohol. For example, consumers can tour a vineyard, sample distillery offerings at their tasting room, or have a drink in a bar or restaurant. However, they cannot visit cannabis farms, sample the product before making a purchase, or consume it in public spaces. In some states, they cannot even smell the cannabis flower.
Even though medicinal or recreational cannabis is legal in three-quarters of US states, nearly 550,000 people were arrested for cannabis-related violations in 2019. As per the Marijuana Policy Project’s website, “Although cannabis use is roughly equal among blacks and whites, African Americans are over three times as likely to be arrested or cited for cannabis possession as compared to whites, according to an ACLU review of government data.”
Organizations such as Hempfest advocate for the release of those imprisoned for cannabis, many of whom were pioneers in the illicit cannabis culture, which has now grown into a legal multi-billion dollar industry. Unfortunately, when these pioneers are released from federal prison, their criminal record renders them unable to attain the licenses needed to run a cannabis business. Expungement of these sentences, which vary by state, can allow those jailed for their involvement in the cannabis movement to participate in profits from the very industry they helped create.