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Penalties for Possessing Marijuana
As Appendix C makes clear, the punishment for possessing marijuana varies widely from state to state. Currently, the most lenient states are California, Maine, New York, Ohio, and Oregon. In those states, conviction for possessing a small amount of marijuana (usually less than an ounce) will result in a fine, but no jail time. Regardless of which state you live in, the sentence for possessing marijuana depends on several factors, including: how much marijuana was found, how old you were when arrested, how many prior convictions you have, and the type of property you were on or near when the crime was committed. Needless to say, all these factors can make sentencing rather complex.
In California, for example, when determining the sentence for marijuana possession, the magic number is 28.5 grams (roughly an ounce). Regardless of your age, if you are convicted in California of possessing 28.5 grams or less of marijuana and have no prior convictions, you will be issued a citation, fined approximately $ 100, and (as discussed in greater detail below) lose your driver\'s license for six months. You will not be arrested and will not spend any time in jail so long as you have proof of your identity.
In almost all states, the punishment for possessing marijuana is considerably harsher if your crime occurred on the grounds of an elementary, junior high, or high school when a school activity was in session. In such a case in California, if you possess an ounce or less, you will be fined a maximum of $500 and/or sentenced to 10 days in county jail.
Smoke A Joint, Lose Your License
The federal government, through the Federal Highway Administration, gives state governments billions of dollars every year to help build and maintain the highway system. In 1990, at the height of George Bush\'s War on Drugs, the federal government got the idea that highway funds could be used to coerce state governments to increase the punishment for marijuana and other drug offenses. The method decided upon was to withhold 10 percent of the federal highway funds from any state that did not agree, by October 1,1995, to implement a six-month driver\'s license suspension for any person convicted of a drug offense. State that fail to comply stand to lose millions of dollars worth of highway funds. The only way a state can get the federal funds but not impose the license suspension is for its legislature to pass an "opt-out" resolution stating its opposition to the license suspension provision and for its governor to go on record in agreement with that resolution.
In states that have passed the law, a person convicted of a marijuana crime, even if it has nothing to do with a motor vehicle, will have their driver\'s license suspended for six months in addition to whatever other punishment is imposed under the state\'s criminal laws.
The following table compiled by the Marijuana Policy Project (FOB 77492, Capital Hill, Washington, DC, 20013) indicates which states have adopted "smoke a joint, lose your license" or a similar license suspension provision.
Table 1. State Driver\'s License Suspension Provisions
STATE SUSPENSION FOR MARIJUANA POSSESSION
AL 6 months
AR 6 months
CA 6 months [1]
CO 3 months [3]
DC 6 months - 2 years
DE 1 -2 years
FL 6 months - 2 years
GA 180 days
IA 180 days
IL 1 year [4]
IN 6 months - 2 years
KS 30 days
LA 90 days - 1 year
MA up to 5 years
MI 6 months [5]
MN 30 days [4]
MS 6 months
MT 6 months [ 6,7]
NJ 6 months - 2 years
NH 60 days - 2 years
NY 6 months [ 2]
OH 6 months - 5 years
OK 180 days
PA 6 months
RI 6 months [8]
SC 6 months
SD 90 days [8]
TX 180 days
UT 6 months
VA 6 months
WI 6 months - 5 years
Notes:
[1] Law sunsets on December 1, 1995.
[2] Law sunsets on October 1, 1995.
[3] Applies to a felony offense, such as cultivating one or more marijuana plants, distributing more than one ounce of marijuana to another person for no consideration, or distributing less than one ounce of marijuana to another person for consideration.
[4] Applies to controlled substance violations while the individual is in actual control of motor vehicle, e .g., possessing a baggie of marijuana while driving.
[5] Waived if person is to serve more than 1 year in prison.
[6] Not required,but available as part of an alternative to prison for drug felony (not simple pot possession.)
[7] Most recent available data were from 1993.
[8] Only if controlled substance violation was in vehicle.
Compiled by the Marijuana Policy Project.
State Taxes On Marijuana—Double Jeopardy
Approximately 22 states have enacted laws that impose taxes on the possession of marijuana. The statutes imposing these taxes are usually included in the state\'s revenue code, but failure to pay the taxes can result in criminal penalties. The typical tax is $3.50 for each gram of marijuana possessed. Montana and New Mexico are slightly different. Montana, for example, taxes marijuana at 10 percent of its market value or $ 100 per ounce, whichever is greater. Anyone who possesses marijuana is supposed to pay the tax, though for obvious reasons no one does.
In June 1994, the United States Supreme Court struck down the Montana tax, ruling that states cannot exact a tax from a person who has previously been convicted and punished for possessing the drugs. (Dept. Of Revenue of Montana v. Kurth Ranch et al, NO. 93-144, June 6,1994, 94 DAR 7673.) To exact such a tax after a person has already been criminally punished, held the Court, violates the Double Jeopardy Clause of the Fifth Amendment. The Double Jeopardy Clause, besides protecting against a second prosecution for the same offense after acquittal or conviction, also protects against multiple punishments for the same offense.
Prior to the Kurth Ranch decision, the Supreme Court had never found a tax to be in violation of the Double Jeopardy Clause. In the Kurth Ranch case, however, the Court examined the tax imposed on a Richard and Judith Kurth after police raided their Montana farm and seized 1,811 ounces of harvested marijuana. In a criminal proceeding, the Kurths were found guilty and sentenced to prison.
Montana then assessed a tax of $ 181,000 ($100 per ounce of marijuana) against the Kurths. The Kurths argued that the tax was actually a second punishment that violated the Fifth Amendment\'s guarantee against Double Jeopardy.
In a close 5-4 decision, the United States Supreme Court agreed with the Kurths. The Court found that Montana\'s tax had punitive characteristics because the tax was extremely high and had an obvious deterrent purpose. As the Court explained: "Taken as a whole, this drug tax is a concoction of anomalies too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis." The Court, however, left Montana (and the other 22 states with similar tax laws) a way out in future cases, explaining: "Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or indeed, if it had assessed the tax in the same proceeding that resulted in his conviction."
Punishment for Possessing Marijuana with Intent to Distribute
In every state, and under federal law, possession of marijuana with the intent to sell or distribute is a separate and more serious crime than simply possessing marijuana. In most states, selling to, or employing, a minor severely increases the punishment. (In fact, in some states it\'s a separate crime akin to,but more serious than, contributing to the delinquency of a minor.) As discussed next, the penalties are further increased if a sale occurred on school property or in a public park.
Punishment for Selling or Manufacturing Marijuana Within 1000 feet of a School
Under federal law (and in a rapidly increasing number of states) punishment for committing a marijuana related offense can be severely increased if the offense occurred w ithin 1000 feet of a school. Under the federal law, any person who sells or manufactures over 5 grams of marijuana on or within 1000 feet of "the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or within 1000 feet of a public or private youth center, public swimming pool, or video arcade facility" is subject to twice the normal maximum term of punishment as well as twice the normal maximum fine. (21 USC sec. 860.)
The courts have routinely interpreted these laws very broadly, applying the increased punishment whenever possible. For example, the courts consider the parking-lots of the above enumerated facilities when calculating the 1000 foot distance. In one case the penalty was applied to increase the sentence of someone who sold heroin inside a bar that just happened to be within 1000 feet of a school. Likewise, there are numerous cases in which people have had their sentences doubled simply because their home or apartment, in which they grew or sold marijuana, happened to fall within 1000 feet of a school. The courts have made clear that the punishment will be increased even if the seller had no idea that he was within 1000 feet of a school. As one court explained, "Congress intended that dealers and their aiders and abettors bear the burden of ascertaining where schools are located and removing their operation from those areas or else face enhanced penalties."
Finally, the courts have refused to limit application of the statute to the hours while school is in session. "Nothing in the statute," explained one court "requires that school be in session or that children be near or around the school at the time of the offense ... the language of the statute is unambiguous and does not require that a school be open at the time of the offense."
Federal Marijuana Crimes— Schedule I
Under the federal government\'s scheme for regulating and controlling drugs, a drug is placed into one of five "schedules." The drugs most tightly controlled, and for possession of which the severest penalties may be imposed, are placed in "Schedule I." There are three criteria for placing a drug into Schedule I. The drug must: (1) have a high potential for abuse, (2) have no currently accepted medical use, and (3) lack safety even under medical supervision.
Closing its eyes to the scientifically proven fact that marijuana is not physically addictive and has never directly caused a single death, and refusing to acknowledge that marijuana is helpful to many people suffering from illness and disease, the federal government has classified marijuana as a Schedule I drug, along with heroin. Numerous marijuana users have challenged the scheduling of marijuana, arguing that it does not meet the criteria for placement in Schedule I. In every case, however, the courts have rejected these arguments.
State and Federal Prosecution for the Same Crime
The federal laws on marijuana are very similar to the state laws. Therefore, if you are in violation of a state marijuana law, you are very likely also violating a federal marijuana law. As the Supreme Court has interpreted the Double Jeopardy clause of the Fifth Amendment, you can be prosecuted by both the state and the federal governments for the same act. The theory is that the state and federal governments are "separate sovereigns," and since your single act violates the laws of both, each sovereign can prosecute you for violating its law.
Table 2. Federal Mandatory Minimums
YEARS TRIGGER/ MANUFACURING OR DISTRIBUTING
5 100 kilograms (220 pounds) of marijuana
5 2 kilograms (4.4 pounds/70 ounces) of hashish oil
5 20 kilograms of hashish
5 100 Cannabis plants
10 1000 kilograms (2204 pounds) of marijuana
10 20 kilograms (44 pounds) of hashish oil
10 200 kilograms of hashish
10 1000 Cannabis plants
Derived from 21 USC sec. 841 (1994).
Mandatory Minimum Safety Valve
The harshness of the mandatory minimum sentence provisions was slightly lessened as part of the federal crime bill signed into law by President Clinton on September 13, 1994. Under a provision in the new crime bill, a marijuana offender who would ordinarily be sentences to either a five- or ten-year mandatory minimum, can avoid that minimum sentence if he or she meets all of the following five criteria:
(1) Defendant has not been previously convicted of a crime requiring incarceration for more than 60 days; and
(2) Defendant did not use violence or a dangerous weapon or induce another to use violence or a dangerous weapon; and
(3) The offense did not result in death or serious bodily injury; and
(4) Defendant was not an organizer, leader, manager, or supervisor; and
(5) Defendant has provided the government all information concerning the offense prior to sentencing. (The fact that the defendant has no relevant or useful information shall not preclude the court from deciding that he or she has met this requirement.)
Unfortunately, the safety valve is not retroactive. It applies only to those defendants who were convicted after September 13,1994. Additionally, should a republican crime bill come down the pike, it is quite possible that it would repeal the safety valve provisions.
Federal Punishment for Simple Possession
A first offender convicted of the federal crime of simple possession of marijuana (i.e., possession without intent to distribute) is punished by a sentence of from zero to one year in federal prison and a mandatory fine of $1,000. There is no federal mandatory minimum for a first time conviction for simple possession of harvested marijuana regardless of the quantity possesses. As a practical matter, however, possession of more than a relatively small quantity of marijuana will result in conviction of possession with intent to distribute rather than simple possession. (The crime of possession with intent to distribute is punished the same as the crimes of distributing or cultivating marijuana.) (21 USC sec. 844.)
A first offender convicted of simple possession of marijuana is eligible for probation if: (1) he has never before been convicted of a federal or state drug crime; and (2) he has not previously received probation for simple possession. Assuming both prongs of that test are satisfied, a judge is permitted to forego sentencing the defendant and instead place him on probation for up to one year. If the person completes his probation term without violating any conditions of the probation, the judge is required to dismiss the proceedings against the person and discharge him from probation. (18 USC 3607[a].)
A person with one prior conviction is sentenced to between 15 days and two years imprisonment and a mandatory minimum fine of $2,500. A third time offender is sentenced to between 90 days and three years imprisonment and a mandatory minimum fine of $5,000. (21 USC sec. 844.)
Federal Punishment for Growing, Distributing, Importing, Exporting or Trafficking Marijuana
Assuming a mandatory minimum has not been triggered, a defendant convicted of a federal marijuana crime (other than simple possession) committed on or after November 1, 1987, will have his or her sentence calculated by reference to the Drug Quantity Table contained in federal sentencing guidelines. The Drug Quantity Table sets punishment based on the weight of the marijuana that the defendant was convicted of growing, distributing, importing, exporting or trafficking (or possessing with the intent to do any of these.) In the simplest case, the sentencing court simply looks up the weight of the marijuana and imposes the sentence indicated by the corresponding offense level. Table 3 shows a slightly simplified breakdow |
