Decriminalization statutes vary across a number of factors that can affect the impact and outcomes of these reforms. For example, these laws differ on what conduct is decriminalized (amounts and location of possession), who qualifies for relief (e.g., first-time offenses only, probationers), whether possession is a civil or criminal infraction and when fines are imposed and at what level. Finally, how these laws are applied and enforced by law enforcement and other official actors can vary. Here are some examples of these differences:
1. Fines – In North Dakota, a partially decriminalized state, the maximum penalty for less than 0.5 ounce of marijuana is $1,000, more than the average monthly rent for a 2-bedroom apartment. While in Minnesota, North Dakota’s neighbor, a person in possession of 1.49 ounces of marijuana or less would be fined only $250. In additional to nationwide differences, there is often considerable in-state variation. For example, some cities in Ohio, such as Athens and Cleveland, have no fines associated with marijuana possession of 200g or less. However, the same act of marijuana possession in a neighboring town may be subject to the state’s partial decriminalization law which imposes up to a $250 fine and up to 30 days in jail for possession of 100g of marijuana or less.
Beyond the costs of fines, there are often serious, even criminal, repercussions for those who cannot pay. Unpaid civil fines may trigger a misdemeanor offense or a driver’s license suspension. For partially decriminalized jurisdictions that treat possession as a minor criminal infraction, unpaid fines could result in jail time.
2. Decriminalized for whom? There are often exceptions codified into decriminalization reforms excluding people with marijuana-related or other types of criminal records. Many decriminalization laws stipulate that marijuana possession is only decriminalized for first or second-time offenses. Those who are found guilty of a second offense or third offense face steeper fines and potential imprisonment. Some jurisdictions, like North Carolina, still leave the possibility of a suspended jail sentence on the table for a first-time offense.
In addition, persons on probation or parole may still risk a supervision violation for marijuana use in states that have enacted marijuana reform. Nationally, roughly one fourth of new state prison admissions are for technical violations like failing a drug test or missing a check-in meeting. The exact number of those admitted to prison for marijuana violations is unknown, but marijuana use can still have dire criminal consequences when states continue to allow for marijuana violations to trigger a prison sentence or lengthier probation terms.
Jurisdictions that treat marijuana as a criminal infraction can result in severe consequences for documented and undocumented immigrants alike. Marijuana arrests can lead to deportation and, for many marijuana convictions, can trigger a mandatory sentence in an immigration prison.
3. Enforcement loopholes – A jurisdiction’s laws on paper do not always reveal how the law is enforced in practice. New York state, for example, first decriminalized in 1977 mandating that possession of 25 grams of cannabis or less would result in no jail time and a maximum $100 fine if possession was out of public view. Yet, individuals who were asked by law enforcement to empty their pockets were now subject to harsher punishment and the possibility of jail time for public view possession. According to the Bronx Defenders, law enforcement frequently used this loophole to make unlawful arrests and by their count, these unlawful arrests accounted for 40% of all possession arrests. In 2019, New York passed a legislation closing this loophole and later legalized adult-use, but half a million people were arrested in New York for marijuana possession between 1997 and 2010. New York is not the only state to stipulate that possession must be out of public view, leaving the door open for this loophole to be exploited by other jurisdictions.
In addition, in Ohio and some other decriminalization jurisdictions, statutes criminalizing possession of drug paraphernalia remained in force resulting in arrests and prosecution for having rolling papers or a pipe along with a small amount of marijuana. In some settings, police could and would continue to criminally enforce marijuana use through these paraphernalia prohibitions.
4. Civil or criminal infraction – In some decriminalized jurisdictions, marijuana possession is treated as a civil offense akin to a traffic ticket. However, in many others, such as Missouri and North Carolina, possession is still treated as a criminal offense and subjects an individual to a formal criminal record. While a first-time offense may not result in a jail or prison sentence, those caught and convicted will possess a misdemeanor conviction on their record, are subjected to a possible 30-day stay in jail, and are burdened with the downstream consequences of a criminal record.