State and Federal Drug Decriminalization

Many states have been changing the criminal approach to drug crimes to reconsider substance abuse as a public health concern. Some states and cities did not enforce simple drug possession for some drugs and other states even decriminalized certain types of drug possession. However, the federal government still considers drug possession a crime.

Most drug crimes are prosecuted under state law but drug trafficking and drug offenses crossing state lines can be federal offenses. If you were arrested for a drug crime, a local criminal defense attorney who understands changing drug laws can help.

What Is Drug Decriminalization?

Drug decriminalization is where the laws are changed to make certain possession of small amounts of drugs for personal use no longer a crime. Possession of drugs can still be an infraction punishable by a fine but may no longer be a misdemeanor offense.

Some states and cities practice “de facto decriminalization.” With de facto decriminalization, no laws were changed but law enforcement and prosecutors change the drug policy for possession of small amounts of a controlled substance. The police may still confiscate the drugs or drug paraphernalia but may not make a drug arrest.

State Drug Decriminalization Laws

The biggest changes in drug use and criminal penalties involve cannabis or marijuana. Beginning in the 1970s, states began to decriminalize the possession of small amounts of cannabis. In recent years, more states are legalizing marijuana for medical use and personal use. More than 20 U.S. states have now legalized recreational use of marijuana, including Vermont and Maine.

Some states have decriminalized marijuana possession but not legalized it. In states like Texas, medical cannabis laws may only limit access to limited-strength CBD oil with THC. Other states, including Nebraska and Idaho, still treat any marijuana possession as illegal, with no medical or recreational exemptions.

In 2020, Oregon became the first state to decriminalize possession of small amounts of illegal drugs, including cocaine, opioids, LSD, and methamphetamine. Possession of controlled substances is an infraction punishable by a fine. The fine can be waived if the individual seeks out drug treatment services.

Resentencing After Conviction for a Drug Crime

Some states have reclassified some drug offenses from felonies to misdemeanors and allow defendants to have their prior felony charges reclassified as misdemeanors. In California, Proposition 47 reclassified a number of crimes as misdemeanors, including simple drug possession. Qualifying defendants who have already completed their sentences can also apply to have their felony conviction reclassified as a misdemeanor.

Federal Drug Law Changes

Under federal law, drugs have not been decriminalized. Possession of drugs even in small amounts is still a crime. Marijuana possession, use, and cultivation are still illegal under federal law. Some lawmakers in Congress have introduced legislation to change drug enforcement for possession of small amounts of drugs but nothing has yet been signed into law.

In 2022, President Joe Biden issued broad pardons for federal convictions for simple marijuana possession. However, the pardons only applied to federal convictions and Washington, D.C. convictions, not for state marijuana possession crimes.

How a Local Drug Defense Attorney Can Help

Criminal defense lawyers have to stay up to date on state and federal drug decriminalization policy changes. A local drug defense attorney can also explain other options to help someone avoid drug convictions on their criminal record. Defendants may be able to go through a drug court as an alternative to criminal court.

Your defense attorney may also be able to negotiate to have your criminal charges dismissed if you complete a substance abuse treatment program and follow the terms of probation. Contact a drug defense lawyer in your area to find out about your legal rights and defense options after a drug crime arrest.