The legalization of cannabis doesn’t necessarily keep everyone out of jail.
This is an important topic for me because I believe people who are using cannabis in the privacy of their own home should not be sent to jail for doing so. Cannabis is essentially a nontoxic plant. It has a very powerful psychoactive effect that ultimately does not hurt the body.
There are far worse crimes, and as legalization sweeps the country we find ourselves very excited that people will stay out of jail.
But I also serve as an expert witness in marijuana cases involving intent to sell, possession of cannabis over state limits, and cultivation issues. Some states don’t allow marijuana cultivation.
First of all, I want to break down the various legal statuses for states. Basically, we have four main categories:
Adult use cannabis or recreational cannabis
This is like Colorado, California, Oregon, Washington, Alaska, and Massachusetts. Maine will come online as well. These are states that have essentially said if you’re 21 or older you can possess cannabis at a certain limit. You can use cannabis as you’d like, you just can’t use it in public. You don’t get arrested for using it in public, you just get a citation. These states often allow cannabis cultivation as well. This is a very practical and reasonable approach to legalization.
A category that is more common but also stricter. These legal programs allow people to register for a card that is sanctioned by the state and allows them to purchase cannabis from legal dispensaries for specific medical conditions.
Every state is different. Some states, like Massachusetts, have a pretty widespread list of ailments. It’s essentially up to your doctor to decide whether cannabis can be good for your ailments. Other states have a very specific list, so if your condition is not on that list you cannot legally use cannabis even though medical cannabis is legal in the state.
This essentially means that you cannot grow it. You can’t buy it. You can’t sell it. However, you can possess it in small amounts and not be charged with a crime.
You would be charged in the way you would for speeding. Speeding is illegal, but it is not a crime that sends people to jail on their first offense. You get a citation and then the police officer sends you on your way. That’s the same as decriminalization, which has kept millions of people out of jail across the country. It’s great.
Cannabis is not decriminalized. There is no adult use cannabis and there is no medical cannabis.
You eventually get into the fuzzy legal area in these categories.
I live in Massachusetts and primarily work as an expert witness in Connecticut because the laws are a lot stricter there. What if you’re possessing more than the state amount? If you are cultivating cannabis in Massachusetts, for example, you can have six plants. Well, a single plant of marijuana could produce far less than the legal amount that people can possess.
As a state registered patient, you can have 10 ounces of marijuana. In an adult use category, you can only have one ounce of marijuana. If your plants produce more than one ounce of marijuana, then you are in violation. You might have 8-10 plants, it’s very easy if you have three different strains that you prefer. You might want a nighttime strain, a daytime strain, and a strain that is middle of the road. Three strains in three different stages, that might be nine plants and already you’re in violation.
When you have seven plants in your house and the law says you can only have six plants, it’s up to a prosecutor to decide whether you’re going to jail or not. There is a lot of discretion with prosecutors. For example, I could end up doing cases where a legal patient from Massachusetts has been pulled over in Connecticut with their 10 ounces. That person can go to jail and be charged with a crime in Connecticut that’s not illegal in Massachusetts.
That’s a problem.
The Problem with Intent
We also have the issue of intent to sell. Intent means that you haven’t sold it yet, but clearly, you’re about to sell it, right? If you have a “For Sale” sign on your car and it’s illegal to sell cars, somebody can say “You clearly intend to sell this car.” Then they can charge you with that crime. But how do you determine if a person has intent to sell marijuana?
Vape pens are a great way of dosing because you can carry one around, you can have it in your office, in your home, in your backpack or purse, right? And you know that it’s going to provide a certain dose. If you’re pulled over with 10 vape cartridges in your car, for example, then the police officer can say, “Well, why do you have more than one vape cartridge? Clearly, you have an intent to sell this marijuana, which is a felony in Connecticut.” You can go to jail for this, even if it’s a patient filling cartridges that are legal in their state.
The defendants and I have to work really hard to prove to prosecutors how patients produce and use their products. If you have a bottle with 100 Ibuprofen pills in your car, it could theoretically go to 100 different people. Do you have an intent to sell Ibuprofen? These are subjective decisions that must be made by law enforcement.
I personally think that laws in states like Connecticut, which allows for medical marijuana, legal dispensaries, and possession of cannabis, but don’t allow for cultivation are essentially ignorant of the process of this plant.