Marijuana Federal vs State.

What is a Schedule I Drug? Under the law (21 U.S.C. § 812), the federal government divides all drugs and controlled substances into five different schedules. A Schedule I drug is one for which the following three findings are made:

• it has a high potential for abuse;
• it has no currently accepted medical use in treatment in the United States; and
• there is a lack of accepted safety for use under medical supervision. A controlled substance that satisfies all three criteria is placed in Schedule I. Currently, federal law generally classifies marijuana as a Schedule I substance, while certain FDA-approved and state-licensed medical marijuana products are in Schedule III. As a result, it is a federal crime to possess, sell, cultivate, or otherwise distribute marijuana, and federal courts refuse to recognize marijuana as having any accepted medical use.

Does the federal government distinguish medical from recreational marijuana?

No, the federal government does not distinguish between medical marijuana and marijuana for recreational use. Despite a state’s attempts to legalize marijuana use for medical purposes, the federal government continues to treat possession of marijuana for medical purposes as a federal crime.

Does a state’s legalization of marijuana prevent federal prosecution?

Not necessarily, as state legalization does not necessarily preclude federal marijuana prosecution either. The federal government typically allows states to decide whether and how to enforce their own marijuana laws, but this does not mean that it is permitted under the law for the federal government to step aside as a result of a state’s adoption of a marijuana decriminalization or legalization statute. The federal government can choose to prosecute conduct that is permitted under state law, and state legalization laws generally do not, by themselves, provide a defense to prosecution for federal marijuana offenses.

If you or a family member are in this situation, we strongly encourage you to speak with an experienced federal defense attorney immediately. You can reach out to us for free and confidential initial consultations by calling 866-423-7133.

What marijuana conduct creates the greatest federal exposure?

Possession of Marijuana

Possession with Intent to Distribute, or Distribution (or Attempted Distribution) of Marijuana

Possession of Marijuana Plants, or Cultivation of Marijuana Plants

The Intersection of State and Federal Marijuana Laws

As we have discussed, state marijuana laws do not provide a defense to federal marijuana possession charges. However, state law can still play a significant role in determining whether the federal government will choose to pursue criminal charges. When federal prosecutors look at initiating a case, they will typically do so only if they have a good reason for doing so.

Federal Marijuana Prosecutions and Federal Prosecutors’ Discretion

Because of the issues with federal marijuana enforcement in light of state legalization, and because of the federal government’s continuing focus on other matters, federal prosecutors do not tend to prioritize marijuana possession cases unless the possession is part of a larger criminal case. While possession cases are less common, prosecutors will frequently prioritize cases that appear to involve marijuana trafficking or other serious federal offenses. This includes both cases involving distribution as well as cases involving other serious federal offenses.

So, if you or a family member are facing charges for marijuana offenses under federal law, it is crucial to speak with an experienced federal defense lawyer as soon as possible. While the most common offenses involve trafficking, this does not necessarily mean that possession cases do not result in criminal convictions. With this in mind, we strongly encourage you to reach out to Spodek Law Group to speak with one of our experienced federal defense lawyers for a free and confidential initial consultation. If we can help, we will. If not, we will help you find one of the other many lawyers that you can work with.

Does federal supremacy require states to criminalize marijuana?

What is the Supremacy Clause?

The Supremacy Clause appears in Article VI, Clause 2 of the U.S. Constitution, and it states, in relevant part:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In other words, the Supremacy Clause requires that state and local governments defer to the federal government whenever there is a conflict between state and federal law.

Does Federal Supremacy Require States to Enforce Federal Marijuana Bans?

The federal government relies heavily on the Supremacy Clause to justify enforcement of its marijuana ban. However, federal supremacy does not automatically require states to enforce the federal government’s marijuana prohibition. Instead, federal supremacy prohibits the states from enacting legislation that prevents the federal government from enforcing its marijuana laws.

Are States and the Federal Government Both Able to Prosecute the Same Conduct?

Yes, both state and federal governments are sovereign entities, and as a result, they are both capable of independently prosecuting criminal conduct. This means that even when a state’s law is less restrictive than the federal government’s marijuana law, the state and federal governments can both prosecute individuals who violate both statutes. The U.S. Supreme Court has upheld the dual-sovereignty doctrine, under which state and federal prosecutions for the same conduct are not prosecutions for the same offense for double-jeopardy purposes.

How Does the Federal Government Handle Marijuana Cases That Are Permitted Under State Law?

In response to the widespread adoption of state marijuana laws, the federal government has taken steps to deprioritize enforcement in certain cases. In 2009, then-Deputy Attorney General David Ogden issued a memorandum regarding medical marijuana that deprioritized prosecutions of individuals and organizations that complied with state laws. In 2013, then-Deputy Attorney General James Cole issued the “Cole Memo,” which identified the federal government’s enforcement priorities for marijuana offenses. Both memoranda provided guidance about federal enforcement priorities; neither legalized marijuana or created a defense to a federal marijuana offense.

Can Florida or Nebraska be called the toughest marijuana state?

As a look through these competing pages shows, no single source provides a nationwide toughness ranking. Instead, there is a clear emphasis on the specific laws in individual states, like Florida and Nebraska. In Florida, the state government differentiates between possessors and manufacturers/dealers based on the amount of marijuana found during a search. Possession of up to 20 grams is considered a misdemeanor, while possession of more than 20 grams is a third-degree felony. These guidelines vary depending on the circumstances involved. For example, if a person is possession of drugs as a result of theft, then that person could face additional charges. Trafficking offenses apply if possession is more than 25 pounds or 300 or more plants. In Nebraska, the state government’s penalties increase as marijuana offenses increase. First-time possession of an ounce or less is considered an infraction. For a second offense, it is a Class IV misdemeanor, and for a third or subsequent offense, it is a Class IIIA misdemeanor. A felony possession charge also applies to more significant quantities, and Nebraska law defines a Class IV felony as possession of more than one pound. Once again, there are different standards for the unlawful possession of marijuana plants. Nebraska law classifies possession of more than one pound of marijuana as a Class IV felony; § 28-416 does not specify a 1,000-plant threshold. Given the vastly different consequences that individuals face for possession in Florida and Nebraska, with felony charges carrying potential imprisonment time, it is difficult to label one state the “toughest” over the other. However, individuals facing felony charges can certainly call a state like Florida the toughest.

With this said, if you or a family member has facing marijuana charges in either Florida, Nebraska, or any other state, then it is crucial to speak with a legal professional as soon as possible. If you’re looking for experienced and compassionate legal representation, our attorneys are here to help. Contact Spodek Law Group to schedule a free and confidential initial consultation. During your consultation, we will get to work with your case immediately and begin to explore every possible defense strategy for you.

May a state-licensed lawyer defend a federal marijuana charge?

Unfortunately, many of the sources providing information regarding the differences between state and federal marijuana laws do not answer most of the common questions that arise when facing federal charges. These sources might be able to provide an answer to a few questions, such as the status of marijuana under federal law or what conduct constitutes an offense, but the answers to several other important questions are left unanswered.

Below is a comprehensive list of questions that remain unanswered by the sources:

• What are the admission requirements for attorneys appearing in federal court?
• Can state-licensed attorneys appear in federal court?
• Does the federal government currently have an official enforcement memorandum in place regarding how it is addressing federal marijuana charges?

While many of these questions may seem trivial, their significance should not be understated, especially when facing the unique challenges of a federal prosecution. Ultimately, if you or a family member are facing potential charges under federal marijuana law, you will need to have answers to these and other important questions. With that said, we strongly encourage you to contact a highly experienced federal defense attorney immediately. We are here to help you as well. As a law firm, we are available 24/7 for free and confidential initial consultations, so do not hesitate to reach out today. By speaking with one of our attorneys, you can gain peace of mind that you are taking steps in the right direction toward defending yourself effectively.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.