Last Updated: 10/18/2019
Legalization of marijuana has been the center of debate for years. Proponents argue legalization creates revenue for state and local governments while allowing for regulatory and safety controls. Those who oppose legalization, on the other hand, raise concerns on its addictive nature and health impact.
The marijuana legislative history is long and complex, mainly due to the lack of consensus on whether it should be legal or not. This article offers a general overview of the legal history of cannabis.
The federal government first banned the use of cannabis when the senate passed the Marijuana Tax Act in 1937. However, the Supreme Court in Leary v. United States ruled this act unconstitutional as it violates the Fifth Amendment right against self-incrimination.
In 1970, President Nixon signed the Controlled Substances Act as part of his "war on drugs" movement. The act combines existing federal laws into one. It also categorizes drugs into five Schedules based on different factors, including the drug's potential for abuse and whether it is acceptable for medical use. Marijuana is a Schedule I drug; putting it among the most strictly regulated drugs.
Although marijuana is still illegal under federal law, state and industry marijuana policies continue to evolve. Every state has laws on drug offenses. But over the years, states are moving towards decriminalizing and legalizing marijuana.
California was the first state to legalize the medical use of cannabis for patients with severe illness through the Compassionate Use Act of 1996. Maine, Washington, Oregon, Alaska, and D.C followed California's footsteps and legalized medical marijuana in the 1990s.
As of 2019, 33 states and Washington, D.C. passed laws that either legalize or decriminalize medical marijuana. Sixteen of these states did so through state legislators while the remaining 17 legalized medical marijuana through ballot measures initiated by citizens. This use is not to be confused with Marinol, a medication that uses synthetic THC to stop pain in patients.
Colorado legalized recreational marijuana for the first time in 2012. Recreational use of small amounts of Marijuana is now legal in eleven states and the District of Columbia. These states, except Vermont and the D.C., also allow commercial sale of cannabis in a small amount.
In addition to making marijuana legal, some states like Illinois also included a criminal justice component in their bill, expunging marijuana conviction records of hundreds of thousands of Illinois residents.
The following table shows the states that have legalized medical or adult use marijuana.
| Medical Marijuana | Recreational Marijuana |
| California (1996) | Colorado (2012) |
| Alaska (1998) | Washington (2012) |
| Oregon (1998) | Alaska (2014) |
| Washington (1998) | District of Colombia ( 2014) |
| Maine (1999) | Oregon ( 2014) |
| Colorado (2000) | California (2016) |
| Hawaii (2000) | Massachusetts (2016) |
| Nevada (2000) | Nevada (2016) |
| Vermont (2004) | Maine (2016) |
| Montana (2004) | Vermont (2018) |
| New Mexico( 2007) | Illinois (2019) |
| Rhode Island (2007) | |
| Michigan (2008) | |
| New Jersey (2010) | |
| Arizona ( 2010) | |
| District of Colombia (2010) | |
| Delaware (2011) | |
| Massachusetts (2012) | |
| Connecticut (2012) | |
| Illinois ( 2013) | |
| New Hampshire (2013) | |
| Maryland (2013) | |
| Minnesota (2014) | |
| New York (2014) | |
| Arkansas (2016) | |
| Florida ( 2016) | |
| North Dakota ( 2016) | |
| Ohio (2016) | |
| Pennsylvania (2016) | |
| Louisiana (2017) | |
| West Virginia (2017) | |
| Oklahoma (2018) | |
| Missouri (2018) | |
| Utah (2018) |
The Supreme Court, in Gonzales v. Raich, held that marijuana business affects interstate commerce and therefore Congress is within its power to regulate it. This means individuals and businesses that are fully compliant with the state's marijuana laws risk conviction by law enforcement for violating federal law.
Even though federal law preempts state law, federal agencies have the discretion to choose which cases they wish to pursue. Until late 2017, the Justice Department took a hands-off approach to marijuana convictions, allowing states to regulate and address marijuana-related activity by their respective state laws.
On January 2018, the then Attorney General Jeff Sessions rescinded previous memos and issued a memo instructing prosecution of marijuana-related offenses even in states that had made it legal. It is, therefore, crucial for cannabis users and retailers to understand they might be subject to federal prosecution despite state laws.
Every state has its own laws on medical and recreational marijuana. These laws vary significantly depending on state and local laws. In addition, until democrats and republicans agree on its decriminalization, cannabis remains illegal under federal law, creating additional risk for new cannabis business owners. If you want to better understand the laws or if you are thinking of opening a marijuana dispensary, consulting a small business attorney experienced in marijuana laws may be a wise investment.
