Criminal Law

Is Medical Marijuana Legal Under Federal Law?

The simple answer is, no. Marijuana, effectively a slang term for cannabis, remains illegal to possess, cultivate or traffic under federal law. However, inconsistencies in how federal law is enforced and applied to medical marijuana cases have created confusion among many medical marijuana patients and providers.

[Note: This is a constantly evolving area of the law that changes quickly. Consult with the authorities or a local attorney for the most up-to-the-minute status of the law in your jurisdiction.]

Controlled Substances Act and Medical Marijuana

The Controlled Substances Act of 1970, regulated the manufacture, cultivation, possession, use, and distribution of certain drugs, including marijuana. According to federal law, marijuana is considered to be a Schedule I drug, meaning it's a drug with little to no medical value which also bears a high potential for addiction and abuse.

Also, under federal law, doctors may not prescribe marijuana for medical use. Many people have been arrested and prosecuted under federal law for possessing, using, or distributing medical cannabis. However, in 2009, President Barack Obama, announced that his administration would not arrest or prosecute medical marijuana users and suppliers.

That stance was in stark contrast to previous presidential administrations, which conducted federal raids on medical marijuana dispensaries and clinics, including those operating within state medical marijuana laws. Under the Obama Administration, these raids stopped.

Although several state governments have legalized both recreational and medical marijuana, cannabis remains highly illegal from the federal government's point of view.

Can You Get Sent To Prison for Use or Possession of Medical Marijuana?

Absolutely, yes. Because marijuana is classified as illegal by the Controlled Substances Act, its possession, cultivation, distribution and use are illegal according to federal law. The law does not recognize the medical use of marijuana or distinguish it from recreational use.

Even in states that allow medical marijuana, you may still be arrested, charged, prosecuted and sent to federal prison on drug-related charges. If you possess or cultivate more marijuana than your state allows or you distribute or transport the drug in ways not permitted by your state or the federal government, you may be prosecuted under federal and/or state laws.

What Is the Penalty for Marijuana Possession?

Some law enforcement officers may consider low quantities (or personal possession) of marijuana to be less than noteworthy, while others may take the matter much more seriously, as the law allows. A first offense for simple possession, of any measurable amount, carries misdemeanor charges and a potential punishment of up to one year in prison as well as a $1,000 fine. A second offense, still a misdemeanor, carries greater weight.

A third offense for marijuana possession constitutes a felony, and at this point, mandatory prison sentences and potential forfeiture and seizure of property are possible penalties.

Can You Be Sent To Prison if Caught Growing or Selling Marijuana?

Cultivation and trafficking of controlled substances including marijuana, especially across state lines, generally results in a more serious sentence than simple possession.

The sale of any quantity of cannabis amounting to less than 50 kilograms is a felony, resulting in a penalty of five years imprisonment and a potential fine of $250,000. Those found guilty of drug trafficking more than 50 kilograms of marijuana, but less than 100 kilograms, could face 20 years in prison and a fine of up to $1 million.

Distribution of a small amount of marijuana, without remuneration (given as a gift, for example) is instead constituted as possession, though whether this is a potential defense in court depends on the case.

According to federal law, the penalties for cultivating marijuana are similar to the penalties for being caught trafficking marijuana.

Will Marijuana Be Legalized or Decriminalized in the United States at the Federal Level?

Despite the fact that marijuana remains illegal at the federal level, recent shifts in public opinion and legislative efforts have introduced the possibility of legalization in the near future.

In late 2020, the House of Representatives introduced the Marijuana Opportunity Reinvestment and Expungement Act (the MORE Act) which intended to deschedule cannabis, effectively decriminalizing the drug. The MORE Act also works retroactively to remove both charges and convictions resulting from the prior categorization of marijuana as a Schedule I drug.

However, it remains unclear if marijuana will be decriminalized or legalized at the federal level at this point in time, or if there will be any changes to current medical marijuana laws.

Possible Defenses for Medical Marijuana Patients Charged With Illegal Possession

Medical marijuana patients who are charged with illegal possession of marijuana in states where the medicinal use of marijuana has been approved may be able to avoid prosecution. It's usually as simple as showing the arresting officer the valid medical marijuana prescription, doctor's note or other documentation permitting possession of the drug.

In cases where a medical marijuana patient is charged with possessing or cultivating more marijuana than is allowed, the patient may be able to argue that their individual medical needs call for possessing or growing more marijuana than is allowed by state law. A note from a doctor confirming this need can be particularly helpful in asserting this defense.

Defenses According to State

In Colorado, patients who do not join the state's medical marijuana registry as required or possess greater amounts of the drug than allowed may argue that it is medically necessary for them to possess that amount in defense to marijuana possession charges.

Even in states like Maryland, where the medical use of marijuana has not been approved, people may be able to assert the medical need to use marijuana as a defense to drug-possession charges.

If you're facing charges related to illegal possession, cultivation or trafficking of marijuana, whether it is medical marijuana or recreational, you should immediately consult an experienced criminal defense lawyer.