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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 breakdown
of punishments administered under federal sentencing guidelines for nonviolent
first offenders caught with harvested marijuana.
The guidelines utilize a Drug Equivalency Table (DET) for persons convicted
of crimes involving hashish oil, Cannabis resin, hashish, or tetrahydro-cannabinol.
The DET establishes the following equivalencies:
1 gram of Hashish Oil = 50 grams of marijuana
1 gram of Cannabis Resin or Hashish = 5 grams of marijuana
1 gram of Tetrahydrocannabinol (synthetic or organic) = 167 grams of marijuana.
The above equivalencies can be plugged into Table 3 to calculate federal
punishment.
Table 3. Federal Punishment for Distributing, Importing, Exporting or
Trafficking Harvested Marijuana
WEIGHT (kg)
PRISON (mo.)
FINE
less than .250
0-6
$500-$5,000
.250- .999
0-6
$1000-$ 10, 000
1-2.4
6-12
$2,000-$20,000
2.5 - 4.9
10-16
$3,000-530,000
5-9.9
15-21
$4,000-$40,000
10-19
21-27
$5,000-$50,000
20-39
27-33
$6,000-$60,000
40-59
33-41
$7,500-$75,000
60-79
41-51
$7,500-$75,000
80-99
51-63
$10,000-5100,000
100-399
63-78
512,500-5125,000
400-699
78-97
5 12,500-$ 125 ,000
700-999
97-121
$15,000-5150,000
1000-2,999
121-151
$17,500-5175,000
3000-9,999
151-188
$17,500-5175,000
10,000-29,999
188-235
520,000-5200,000
30,000-99,999
235-293
525,000-5250,000
100,000-299,999
292-365
$25,000-5250,000
300 ,000 or more
30 yrs. to life
525,000-5250,000
Derivedfrom
Sentencing Guidelines 2D1.1 (1994).
The sentence is determined differently if the defendant is caught with
live, unharvested Cannabis plants rather than harvested marijuana. To
deal with the situation where live plants are confiscated, Congress initially
enacted an "equivalency provision," that employs the following
system:
In the case of an offense involving marihuana plants, if the offense involved
(A) 50 or more marihuana plants, treat each plant as equivalent to 1 KG
[kilogram] of marihuana ;(B) fewer than 50 marihuana plants, treat each
plant as equivalent to 100 G [grams] of marijuana. Provided, however,
that if the actual weight of the marihuana is greater, use the actual
weight of the marihuana. (Sec. 2D1 .l[c] n.)
In other words, under the federal law which was in effect until Nov. 1,1995,
a person convicted of manufacturing 50 Cannabis plants was sentenced as
if he had been found with 50 kilos (50,000 grams) of marijuana. However,
if the exact same person was found with only one less plant, the equivalency
provision treated him as having been found with only 4.9 kilos (4,900
grams) or over ten times less marijuana than had he grown only one more
plant! Translated into punishment, that meant that a person caught growing
fifty plants was sentenced to between 33-44 months and fined between $7,500
and $75,000, while a person caught growing forty-nine plants was sentenced
to between 10-16 months and fined between $3,000 and $30,000.
November 1,1995 Guideline's Revision: All Cannabis plants equated to 100
grams
As described above, the 49- versus 50-plant distinction built into the
federal sentencing guidelines resulted in a disproportionately harsher
sentence for any person who unwarily grew 50 (or more) Cannabis plants
as opposed to 49 plants. Because of the concerted efforts of advocates
like the Marijuana Policy Project and Families Against Mandatory Minimums
(FAMM), the absurdity of the distinction was impressed upon the commission
charged with revising the sentencing guidelines. In the most recent amendments
to the guidelines, which took effect November 1, 1995, the Sentencing
Commission discarded the distinction, replacing it with an across-the-board
100 gram equivalency regardless of the number of plants. Additionally,
to the happiness of many imprisoned marijuana growers, the new equivalency
provision was made retroactive which means that approximately 950 federal
inmates "serving time" for marijuana cultivation will have their
sentences significantly reduced. As revised, the new equivalency provision
reads:
For marijuana the commission has adopted an equivalency of 100 grams per
plant, or the actual weight of the usable marijuana whichever is greater.
The decision to treat each plant as equal to 100 grams is premised on
the fact that the average yield from a mature marijuana plant equals 100
grams of marijuana. In controlled substance offenses, an attempt is assigned
the same offense level as the objet of the attempt .... Consequently,
the Commission adopted the policy that each plant is to be treated as
the equivalent of an attempt to produce 100 grams of marijuana, except
where the actual weight of usable marijuana is greater. (Sec. 2D1.1 Revised
Background Commentary.)
The Commission published its reasons for unifying the equivalency to 100
grams regardless of the number of plants, explaining:
The one plant = 100 grams of marijuana equivalency used by the Commission
for offenses involving fewer than 50 marijuana plants was selected as
a reasonable approximation of the actual yield of marijuana plants taking
into account (1) studies reporting the atual yield of marijuana plants
(37.5 to 412 grams depending on growing conditions); (2) that all plants
regardless of size are counted for guideline purposes while, in actuality,
not all plants will produce usable marijuana (e.g., some plants may die
of disease before maturity, and when plants are grown outdoors some plants
may be consumed by animals); and (3) that male plants, which are counted
for guideline purposes, are frequently culled because they do not produce
the same quality of marijuana as do female plants. To enhance fairness
and consistency, this amendment adopts the equivalency of 100 grams per
marijuana plant for all guideline determinations.
Table 4 reflects the 1995 equivalency change and shows the punishment
range for a first offender convicted of cultivating Cannabis plants. Recall,
however, that if the prosecutor can show that the actual yield of the
plants was greater than 100 grams, the actual weight is used rather than
the equivalency.
Table 4. Federal Punishment for Growing Cannabis Plants
NO, OF PLANTS
1-2
3-9
10-24
25-49
50-99
100-199
200-399
400-599
600-799
800-999
1,000-3,999
4,000-6,999
PRISON (mos.) 0-6 0-6 6-12 10-16 15-21 21-27 27-33 33-41 41-51 51-63 63-78
78-97
FINE
$500-$5,000 $1000-$ 10,000 $2,000-$20,000 $3,000-$30,000 $4,000-$40,000
$5,000-$50,000 $6,000-$60,000 $7,500-$75,000 $7,500-$75,000 $10,000-$100,000
$12,500-$ 125,000 $12,500-$ 125,000
7,000-9,999
97-121
$15, 000-$ 150 ,000
10,000-29,999
121-151
$17, 500-$ 175 ,000
30,000-99,999
151-188
$17, 500-$ 175, 000
100,000-299,999
188-235
$20,000-$200,000
300,000-999,999
235-293
$25,000-$250,000
1,000,000-2,999,999
292-365
$25,000-$250,000
3, 000 ,000 or more
360 to life
$25,000-$250,000
Derived from Sentencing Guidelines 2D1.1, as revised
Nov. I, 1995.
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