Marijuana Legalization: What Happens to Those Currently in Prison?

CANNABIS CULTURE- The majority of clinical research points to cannabis’ numerous health benefits. State-based medical marijuana programs continue to expand, reaching 29 states across the U.S. Recreational cannabis has recently expanded to eight.

Given these changes, can those serving a prison sentence for marijuana possession seek legal recourse?

Currently, the U.S. government still has no intentions of declassifying cannabis as a Schedule I drug under the Controlled Substances Act (which does not differentiate between medical and recreational use).

Marijuana Possession in the U.S.

According to a 2016 report drafted by the United States Sentencing Commission (USSC) titled, ‘Weighing the Charges – Simple Possession of Drugs in the Federal Criminal Justice System,’ simple possession offenses exploded between 2008 and 2013, seeing an increase of nearly 400 percent. “A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type-marijuana-and to offenders who were arrested at or near the U.S./Mexico border,” reads the report.

Former Attorney General Eric Holder sought to address this by instructing federal prosecutors to spare low-level drug offenders from receiving mandatory minimum sentencing in cases where there were no victims, no significant criminal history and no links to drug-trafficking organizations.

As a result, America’s prison population began to shrink for the first time in nearly three decades. That same year, Colorado became the first state to legalize the recreational use of marijuana, which sparked a wave of cannabis acceptance and expansion to several additional states. By the end of his term, President Obama commuted the sentences of a record number of nonviolent drug offenders and became the first sitting president to visit a federal prison.

The current administration however, is looking to reinstate many of the failed drug policies that have led to a bloated and overcrowded prison system. While their public stance on medical marijuana has been confusing, Attorney General Jeff Sessions’ harsh remarks on cannabis and his recent letter asking congress to end state medical marijuana protections is troubling to say the least.

Serving a Sentence for Possession

The United States Sentencing Commission states, “the simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions.” First offenders can receive a $1,000 fine and up to one year in jail under a misdemeanor charge.

According to Norml, the federal sentencing guidelines for cannabis are as follows:

Possession of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction. For a second conviction, the penalties increase to a 15-day mandatory minimum sentence with a maximum of two years in prison and a fine of up to $2,500. Subsequent convictions carry a 90-day mandatory minimum sentence and a maximum of up to three years in prison and a fine of up to $5,000.”

Federal law usurps state law. Even if medical or recreational marijuana is legally permitted in one’s state, federal agents can still arrest any persons in possession of marijuana. Sessions’ recent memo asked federal prosecutors to push for the “most serious” charges against drug offenders; a move that would reignite the ‘war on drugs’ and trigger mandatory minimum sentencing guidelines.

The Pathway to Marijuana Legalization

Fortunately, a growing number of congressional members are pushing back on these directives. The bipartisan Congressional Cannabis Caucus was formed in early 2017 Dana Rohrabacher (R. Calif.), Don Young (R. Alaska), Earl Blumenauer (D. Ore.) and Jared Polis (D. Colo.).

Their goal is to protect state’s rights to cannabis access and prevent government interference. Rohrabacher and Sam Farr (D. Calif.) introduced the Rohrabacher-Farr amendment (which finally passed in 2014 after six failed attempts).

The provision, that prevents the government from using federal funds to interfere with statewide medical marijuana programs, has proven to be a saving grace for these programs across the country after President Trump’s election.

Options Available for Those Currently Serving a Sentence

Any individual who is currently serving a sentence for a non-violent marijuana-related crime should seek the advice of a criminal defense attorney. Criminal defense attorneys are able to navigate the complexities of federal and state laws, in order to help you understand your rights and determine the best course of action.

Families Against Mandatory Minimums (FAMM), has a detailed outline of the criteria needed to remove the mandatory minimum sentencing obligations depending on the details of the case. As of now, Sessions’ directives have not gone into effect. Even so, defendants may not have much time to act on their own behalf before the 2013 policy becomes no longer enacted.

Norml, an organization ‘working to reform marijuana laws,’ has chapters throughout the United States. Their network of local criminal defense attorneys and experience in cannabis’ legislative practices make them a valuable resource for anyone who is currently serving a federal sentence for marijuana.


John F. Marchiano Law Corp. is Henderson’s oldest law firm. John has over 35 years of professional experience providing personalized, criminal defense representation to residents of Henderson and Las Vegas, Nevada.


*DISCLAIMER* This article does not constitute legal advice from Cannabis Culture or any of its subsidiary agencies, nor is it an endorsement of the legal team who has authored the piece. This information should be viewed with the understanding that all cases are unique and should be treated as such. Know your rights, do not make any statements to police and speak to a lawyer if you have been charged with a cannabis related offense, their intervention will make all the difference.