The place in America is marijuana nonetheless solely unlawful?

marijuana legalization, The three degrees of marijuana legalization in the United States

(Editor’s be aware: This story is a part of a recurring collection of commentaries from professionals linked to the hashish trade. Julie A. Werner-Simon is legislation professor adjunct at Drexel College’s College of Regulation, a authorized analyst for the “Hashish as an Rising Enterprise” class at Drexel’s LeBow College of Enterprise and a former federal prosecutor. That is the second installment of a three-part collection. Half 1 defined the totally different levels of hashish legalization in U.S. states.)

marijuana prohibition, Where in America is marijuana still entirely illegal?

Fewer than 7 million of America’s 335 million inhabitants stay in locations with out some extent of marijuana legalization.

The rest possess three levels of legalization. There are 11 third-degree states (depicted in yellow within the pyramid illustration above) with severely limited-access (SLA) applications masking a inhabitants simply shy of 90 million folks.

There are additionally 20 different states and two territories (Puerto Rico and the U.S. Virgin Islands) which might be completely second-degree medical-use regimes (proven in blue) and which have a complete inhabitants of virtually 118 million residents.

Lastly, there are greater than 120 million inhabitants within the 16 first-degree states and territories (the inexperienced space within the pyramid), of which all have legalized leisure marijuana use and still have coexisting medical use (second-degree) standing.

The apex of the pyramid illustration exhibits that there are solely three mainland-state outliers and one U.S. territory the place marijuana is “totally unlawful” – that’s, being verboten to be used in any type.

These are Idaho, Kansas, Nebraska and American Samoa.

However these “solely unlawful” locations have stirrings of motion to both third-degree, severely restricted entry (SLA) – or second-degree medical-use standing.

As a common rule, second-degree medical marijuana states and territories allow sufferers, at a minimal, to own and smoke medical marijuana, whereas SLAs (reminiscent of Texas, which has been in state courtroom this week making an attempt to ban smokable hemp) don’t.


In Idaho, the place the governor vetoed an SLA proposal in 2015 that will have permitted low-THC marijuana to be used with epilepsy, residents are searching for reform regardless of state Republican legislative roadblocks.

If a 2022 marijuana initiative proposal makes the poll and passes, it will leapfrog Idaho over SLA standing and transfer it immediately into the second-degree column.


Roughly 190,000 Nebraskans (greater than 10% of the state’s registered voters) signed to position a medical-use constitutional modification on the 2020 poll.

Nonetheless, in September 2020, legislation enforcement sued to dam the poll initiative.

The Nebraska Supreme Court docket, on “procedural grounds,” saved the measure off the poll – holding that it violated Nebraska’s single-subject formalities by searching for to legalize medical marijuana possession and distribution and manufacture.

Unbowed Nebraska residents have proposed one other medical marijuana initiative for the 2022 election.


In Kansas, the place residents do not need the ability to provoke statewide voter initiative measures, legislators final yr crafted a medical marijuana invoice, however it died in committee.

Nonetheless, Kansas’ governor just lately picked up the mantle and pushed for brand spanking new medical marijuana laws arguing that the elevated income might be used for the state’s Medicaid growth and a brand new medical marijuana measure was launched on the Kansas statehouse final month.

And this month, Democratic lawmakers in Kansas launched laws to legalize leisure use.

American Samoa

Due to price range shortfalls, there’s even dialogue of legalization in American Samoa, an American territory within the South Pacific roughly 5,000 miles west of California. American Samoa, comprised of roughly 55,000 folks, is the one inhabited U.S. territory the place its residents are born on “American soil” however are legally deemed noncitizen U.S. nationals.

Federal method

Now contemplate the federal authorities’s method to marijuana.

To at the present time, for virtually all People, it’s federally unlawful to own marijuana in any quantity. It’s unlawful to take marijuana on an airplane, to position it within the U.S. mail or to move it throughout state traces.

The motion of marijuana between states constitutes “interstate commerce,” which the federal authorities has regulated because the nation’s founding.

Marijuana companies can not get small-business loans or federal COVID-19 reduction funds, and they’re shunned by nearly all of federally insured banks given the opportunity of federal cash laundering publicity for monetary facilitation of a federally unlawful drug.

Marijuana companies can not declare chapter, a federal financial “privilege” afforded to different American companies and people enabling them to “begin over” or retool.

Bank card transactions for marijuana companies are difficult. However main corporations reminiscent of American Specific, Mastercard and Visa historically haven’t permitted the usage of their playing cards for what seem like marijuana transactions.

And marijuana, even when used medically, can’t be deducted as medical bills on federal tax returns.

Marijuana companies can not (like different companies) deduct strange and mandatory enterprise bills, a place the Biden administration supported as just lately as February.

That’s when Performing Solicitor Basic Elizabeth Prelogar submitted a authorized transient to the U.S. Supreme Court docket within the case of Standing Akimbo LLC et al. v. U.S., No. 20-645, arguing that below federal legislation, marijuana stays federally unlawful.

Consequently, the federal government reasoned the IRS acted correctly in searching for tax data for a “state-legal” marijuana firm in Colorado that was below investigation for wrongfully taking impermissible federal deductions.

Moreover, it’s unlawful for a member of the armed companies to make use of marijuana – it’s prohibited by the Uniform Code of Navy Justice, Article 112a – and it stays unlawful to make use of marijuana as a federal worker, together with these presently working on the White Home.

America’s constitutional framework is predicated on twin and sometimes competing governmental methods: federal and state. Marijuana has been federally unlawful for greater than 50 years.

Not one of the state-legalization regimes within the house supersede federal preemption. Anybody (and any enterprise) that ignores marijuana’s federal illegality takes an enormous threat.

Ignorance shouldn’t be bliss.

(Watch this house for the third installment of Werner-Simon’s identification of the levels of legalization in marijuana throughout the nation. Half three will element how, regardless of current White Home firings for hashish utilization, there’s proof that the federal prohibition of marijuana is on the wane.)

Julie A. Werner-Simon is a authorized analyst for the “Hashish as an Rising Enterprise” class at Drexel’s LeBow College of Enterprise. She will be reached at [email protected].

The earlier installment of this collection is out there right here.

To be thought-about for publication as a visitor columnist, please submit your request to [email protected] with the topic line “Visitor Column.

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