Can The FEDS Prosecute Marijuana Offenses?

April 2, 2020

With marijuana becoming legalized for either medicinal use or recreational purposes in numerous states, many people believe that marijuana is no longer a drug for which a person can be prosecuted. 

Heck, even Oklahoma, hardly a bastion of left-wing radicals, has legalized marijuana, although only for “medicinal” purposes at this point.  So the question is, can a person even be prosecuted anymore for marijuana.  The answer is yes but it depends on the facts. 

United States Constitution

The first thing to remember is that under the Supremacy Clause of the United States Constitution, state law is second fiddle to federal law.  Under the Article VI of the Constitution, federal law is the “supreme law of the land.”  Therefore, just because something is legal under state law doesn’t mean the federal government can’t prosecute you if you do something that is prohibited under federal law.

Under federal law, marijuana is still considered a prohibited drug.  Indeed, it’s considered a “Schedule 1” drug under the federal Controlled Substances Act, making it, at least in the eyes of the federal government, worse than methamphetamine and cocaine.  Schedule 1 drugs are those drugs the federal government deems to have no medicinal benefit. 

Under the Controlled Substances Act, marijuana is in the same category as “LSD” and heroin.  To many people this will seem odd and make no sense.  The main point, however, is that marijuana is still considered under federal law to be in the same category as the most serious drugs.  As a Schedule 1 drug, marijuana related offenses under federal law carry the most serious penalties.

Marijuana Offenses

Unless a person is a major drug dealer and selling marijuana in large quantities and not complying with state regulations, it is unlikely the federal government will be interested in prosecuting such an individual.  Generally speaking, federal authorities mainly concern themselves with “big cases” involving major criminal acts. 

Sitting on your sofa at home listening to Bob Marley records and smoking “ganja” is not going to draw the interest of federal agents.  And certainly not if you’re using marijuana to treat a medical condition.  However, smoking marijuana on federal land, such as at a national park, may earn you a citation or prosecution for a misdemeanor offense. 

That may not seem like a big deal to some people given that a misdemeanor is not the same as a felony in terms of potential incarceration or social stigma but it will create a criminal record that could create adverse consequences such as in employment or other matters.  Thus, smoking marijuana requires knowing and appreciating your surroundings and the effect that could have.           

Federal Government Involvement

For most people, there is little to fear from the federal government when it comes to marijuana.  Under the Sixth Amendment of the Constitution, anyone facing charges in federal court has the right to a jury trial.  With the widespread legalization of marijuana in many states and social attitudes relaxing in the way marijuana offenses is viewed, the federal authorities understand that it will be harder to obtain a conviction in a marijuana case unless the facts are very strong and show a defendant profiting illegally in a significant manner that offends a jury. 

No reasonable federal prosecutor is likely to bring a case against someone simply for marijuana use.  Thus, in the overwhelming majority of situations, most people have little to fear if their involvement with marijuana is within the boundaries of established state law, notwithstanding the fact that marijuana is illegal under federal law. 

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