Cannabis Law Primer: The Difference Between Decriminalization & Legalization

cannabis law primer

Even if most of 2020 felt like a standstill, the cannabis policy front was anything but dull. On Election Day, five states from across the political spectrum—Arizona, Mississippi, Montana, New Jersey, and South Dakota—passed resolutions approving either medical or adult-use cannabis. Currently, one in three Americans lives in states that have legalized adult-use cannabis.

But even among the cannabis-conscious, there’s still some confusion about what, exactly, all those cannabis laws mean, especially when cannabis remains illegal at the federal level. So with that in mind, let’s take a moment to dive into the differences between decriminalization and legalization, and what they might mean for you.

Cannabis Law: What Is Decriminalization?

Simply put, decriminalization is the reduction or loosening of criminal penalties associated with an illegal act. Typically, in states that have decriminalized cannabis, use or possession of small amounts are classified as a civil offense, somewhat akin to a parking ticket in terms of penalty and severity. 

It may surprise you to learn that cannabis already had a fairly significant decriminalization moment back in the 1970s. Due in large part to the efforts of NORML—the National Organization for the Reform of Marijuana Laws—by the end of the decade no fewer than 11 states had decriminalized minor cannabis offenses. For many of those that didn’t, penalties for cannabis use were significantly reduced.

Tragically, the following decade saw a major pushback to these decriminalization efforts. Under presidents Reagan and Bush, the federal government doubled down on the disastrous War on Drugs, unduly targeting communities of color, helping to fuel a national prison crisis, and doing little to actually curb illicit drug use.  

According to NORML, today some 26 states have passed cannabis decriminalization laws (some have subsequently advanced to full legalization). 

What are the pros and cons of decriminalization? Some advocates claim that governments—federal, state, or local—shouldn’t be tasked with both legalizing and regulating cannabis, arguing that it sends at best a mixed message. Of course, this is already the case with alcohol and tobacco. Related or not, in the United States alcohol consumption has been fairly stable over the last few decades; in roughly the same time period, tobacco use has fallen.

Those who are against decriminalization make the case that because it does nothing to address the issues of regulation and sale, it’s a half measure at best. Under decriminalization, activities associated with growing, processing, and servicing the supply chain are still criminal acts, so state and local governments don’t reap the sizeable tax revenues associated with legal cannabis sales.

Cannabis Law: The Meaning of Legalization

Legalization

In contrast, cannabis legalization means the abolishment of laws that ban cannabis possession and use. In terms of civil liberties, it’s a majorly symbolic (and moderately functional) step up from decriminalization. More critically for those of us in the dispensary business, legalization creates the framework for a regulated (and thus taxable) system of sales and use.

But there’s much more to legalization. Many proponents believe that in addition to providing a potential tax windfall, legalization could be a major force in what’s often termed “restorative justice.” As of 2020, an estimated 40,000 Americans are incarcerated for cannabis offenses. As we’ve reported previously, several states are pushing ahead with fast-track programs to pardon and/or expunge the criminal records of those convicted of prior cannabis offenses.

Currently, roughly two-thirds of Americans support legalization. But that doesn’t mean we should prepare to actually get it anytime soon. During the 2020 campaign, President-elect Biden came out in favor of federal decriminalization, not legalization. “I don’t believe anybody should be going to jail for drug use,” he said. “They should be going into mandatory rehabilitation. We should be building rehab centers to have these people housed.”

In an ABC virtual town hall meeting, Vice president-elect Kamala Harris went even further, stating:

Kamala-Harris cannabis law MORE act

“Under a Biden-Harris administration, we will decriminalize the use of marijuana and automatically expunge all marijuana-use convictions and end incarceration for drug use alone.” 

Of course, whether or not Biden’s call for massive federal drug-rehab program jibes with the fact that a majority of states have already legalized medical and/or adult-use cannabis remains an open question.

Meanwhile, the House of Representatives took an unexpectedly bold step this past December by passing a sweeping bill to decriminalize and de-schedule cannabis, as well as expunging the records of those convicted of nonviolent cannabis-related offenses. 

Though the bill has essentially zero chance of passage in the currently Republican-controlled Senate, it represents a remarkable moment in the story of cannabis. In addition to being the first time either chamber of Congress has endorsed legal cannabis, it contains robust provisions to fund community and small-business grants to help redress the punitive impact of the War on Drugs, especially on communities of color.

A harbinger of good things to come? Needless to say, we’ll keep you in the loop if there are any changes to cannabis law.