Criminal Law

The Debate over the Legalization of Drugs

For years, scholars and activists, agencies and politicians have debated the best way to combat illegal drug use. Criminal law scholars, well-known thinkers such as Milton Friedman, and drug legalization activists such as the group NORML have found themselves on the same side of this debate. They argue that our criminal courts and prisons are pushed beyond capacity because of harsh punishments for non-violent offenses such as the possession of drugs or drug paraphernalia.

Limited Legalized Drug Use Allowed in US

In February 2009, one California legislator, Christopher Springer, proposed a bill that would make the possession, use, and sale of marijuana legal. The bill would also allow the sale of marijuana to be taxed.

Mr. Springer argues that the current economy requires bringing in significant tax revenues from marijuana sales, estimated to be more than $1 billion a year. He and others have also called for a re-thinking of the criminalization of marijuana, because of the heavy burdens on the justice and prison systems.

Currently, there is only very limited legalized use of "controlled substances." In California and some other states, the use of marijuana is allowed for medicinal purposes only. Prescription drug use is allowed in all states, but only when authorized and prescribed for the person using the drugs.

Anyone who is a resident of a state that allows medicinal use of marijuana shouldn't assume they can cross their state's border with marijuana without fear of criminal punishment. The laws of each state in which you're located at the time of the possession or sale of drugs will apply.

Legal Medicinal Drug Use

In 1996, California was among the first states to legalize marijuana for medicinal purposes. Even though some states have their own laws about medical marijuana use, federal drug regulations have been harshly applied. Attorney General Eric Holder recently advocated for the rights of states to develop their own rules on this issue.

Often, state laws require that you get a prescription or other authorization to use marijuana for medicinal purposes. The laws allowing this type of use are restrictive and limited, and should be reviewed very carefully. You should avoid any risk of finding yourself in another state or country with any traces of marijuana, as the laws of one state don't reach beyond that state's borders.

Ignorance of the Law Is No Excuse

A basic principle of the law is that you're expected to know the laws and abide by them. Ignorance of the law is no excuse. Of course, knowing every law in every state is impossible, and even long-time practicing lawyers regularly check to be sure they're familiar with the current laws.

The punishments for drug possession, use, and sale are extremely harsh. Many are felonies with serious consequences, including a loss of the right to vote, the right to possess firearms and the right to seek public office. Especially when considering new and unconventional practices such as the legal use of marijuana, it's important to understand the limits of what the law allows.

In many states, a first-time drug offender can be sentenced under a more lenient sentencing structure, often including a period of probation. Then, if the person has successfully completed his probation, he can apply to have his felony conviction expunged.

In such a case, it's a must to consult with an attorney before entering a guilty plea, so that the appropriate language is included in the judgment order. It'll be very hard to receive a better deal after entering a guilty plea, because you would have to convince the judge that the first plea was not voluntary or informed.

Wave of the Future?

Only time will tell if California will be successful in its bid to legalize marijuana use to raise revenue for the state. If it's successful, it may open the flood gates for other states to begin the decriminalization or legalization process. Stay tuned for more on this topic in the coming months.

Questions for Your Attorney

  • What is the interaction between federal and state laws if someone is using marijuana legally? What if there's drug testing in some area regulated by federal law? Does the law cover these situations?
  • Can someone travel to a state with legal medicinal use of marijuana specifically for that purpose? What if you lived near a border and such travel was convenient? Could you face criminal charges when you returned to your home state?
  • Are the costs of legal marijuana for medicinal purposes treated the same as other medicines or medical supplies for purposes such as insurance coverage and tax deductions?
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