By Blair Lozier, Valerie Newberg and Dr. Dakota Thomas
The adoption of varying types of policy addressing marijuana legality continues in many states despite the drug remaining a controlled substance at the federal level. As of 2023, 20 states and the District of Columbia have legalized the recreational adult use of marijuana. By contrast, there are 20 other states to have decriminalized marijuana-related offenses such as small quantity marijuana possession, cultivation and transfer.
Legalizing marijuana allows states to create an adult-use market for cannabis products that is both regulated and taxes, whereas decriminalization typically results in the removal of criminal penalties and the possibility of incarceration for low-level marijuana offenses. Several states that moved to decriminalize or legalize marijuana have also implemented policies allowing for the expungement of low-level marijuana offenses.
State marijuana policy is enacted through legislative and executive action, or by registered voters. The legalized use of recreational marijuana was decided by voters in five states during the 2022 election. Two of those five states voted in its favor. Marijuana remains illegal in federal law and regulations, though President Joe Biden has proposed changes to this policy.
Hovering your mouse over a state will display more information about that state’s policy. Hovering your mouse over a legend category will display all states sharing the highlighted policy.
NOTE: The map shows only the highest level of legalization or decriminalization, which may only apply to specific offenses. Some states have only legalized or decriminalized possession for up to a specific amount, for example, while other related charges are subject to different rules.
States have taken four main approaches to marijuana policy: full criminalization, legalization of medical marijuana, recreational decriminalization and recreational legalization. Marijuana remains entirely illegal in four states, with criminal penalties for its sale, possession and use. Seven states have legalized medicinal use of CBD oil with THC but no other forms of marijuana, while eight states have legalized all forms of marijuana for medicinal purposes. Twenty states have decriminalized possession/use of marijuana under certain conditions, typically meaning possession of small quantities of marijuana will not result in incarceration or criminal record for first-time offenders. Finally, 21 states have fully legalized recreational use of marijuana, thus allowing the creation of a regulated, recreational adult-use marijuana market that is taxed by the state. Each of these approaches is broken down in the following sections.
Decriminalization of Recreational Use
Decriminalization of recreational marijuana is a step short of legalization and entails removing criminal sanctions from marijuana possession/use while the drug remains illegal. Twenty states have decriminalized recreational marijuana. The drug is still illegal but punishment is not a criminal sanction like incarceration or criminal record for first time offenders. Instead, offenders may pay a civil fine or attend required treatment/education.
Legalization of Medical Use
As of December 2022, 16 states have legalized only medical use of marijuana. These states consist of Alabama, Arkansas, Delaware, Florida, Hawaii, Louisiana, Minnesota, Mississippi, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Utah and West Virginia. In these states, a qualified individual must be diagnosed with a condition whose symptoms can be clinically treated by marijuana, such as those associated with HIV/AIDS, PTSD, glaucoma and other conditions, and receive a medical marijuana certificate.
There are 21 states that have legalized the recreational use of marijuana. In most of these states, consumers can legally purchase marijuana products from a state-licensed and regulated facility. Use of marijuana products in public may remain punishable by law and there may be limits on possession of high quantities of marijuana. Additionally, the federal government still prosecutes marijuana offenses such as the illicit sale of marijuana (including to minors and across state lines), drugged driving and possession of marijuana on federal property in states with legal recreational use laws.
Hovering your mouse over a state will display more information about that state’s expungement policy. Hovering your mouse over a legend category will display all states sharing the highlighted policy.
Expungement Policy for Marijuana Charges
In some states where marijuana is decriminalized or legalized, the law allows for prior criminal convictions for low-level marijuana offenses to be expunged. Expungement is the legal process by which the record of a criminal conviction is destroyed or sealed from state and/or federal records. Twenty-four states and the District of Columbia have passed legislation allowing courts to expunge eligible marijuana convictions, with six of those states requiring automatic expungement for all qualifying convictions.
Recent State Changes to Marijuana Legality
In the 2022 election, five states had marijuana legalization measures on the ballot. Missouri and Maryland voted to legalize recreational use, while Arkansas, North Dakota and South Dakota voted against full recreational legalization. Medicinal uses will remain permitted in those states.
- Arkansas voters rejected a ballot measure that would have legalized the recreational adult use of marijuana.
- North Dakota’s citizens voted against legalizing the recreational adult use of marijuana.
- South Dakota voters decided against legalizing the possession, distribution and recreational use of marijuana for persons 21 years and older.
- Maryland voters approved the measure legalizing marijuana for adults 21 years and older. This ballot will allow the state Legislature to pass laws for the use, distribution, regulation and taxation of marijuana.
- Missouri voters approved the legalization of marijuana. The amendment (1) legalized the purchase, possession, consumption, use, delivery, manufacture and sale of marijuana for person use for adults at last 21 years or older, (2) enacted a 6% tax on the retail price of recreational marijuana, and (3) allowed convicted persons with certain marijuana-related offenses to petition for release from prison, parole and probation, while also having their records expunged.
Federal Marijuana Policy
While many states have legalized, decriminalized or allowed use of marijuana in medicine, it remains illegal at the federal level and is considered a Schedule I drug, the most restrictive classification given by the Drug Enforcement Administration for substances with no accepted medical use and a high potential for abuse.
In October 2022, President Biden moved to decriminalize marijuana possession at the federal level through a three-step approach that began by pardoning all prior federal offenses of simple possession of marijuana. As of Dec. 2, 2022, Attorney General Merrick Garland is developing an administrative process to pardon eligible individuals. President Biden then urged state governors to issue similar pardons for state possession offenses. The president’s third step tasked the Department of Health and Human Services with declassifying or reclassifying marijuana as a controlled substance under federal law by petitioning the attorney general and the Food and Drug Administration for review of its risks and clinical benefits.
If marijuana is determined to have medical use and a lower level of potential for abuse and dependence, it may be reclassified or declassified entirely. However, President Biden stated that important limitations on trafficking, marketing and sales to minors should remain in place. As of February 2023, the FDA has not approved the cannabis plant for medical use.
Cannabis Regulators Association: https://www.cann-ra.org/