Maine Attorney specializing in OUI, DUI and Criminal Defense

There is a nation-wide evolution occurring in attitudes towards marijuana.  While the drug has been categorized as illegal for decades, certain States, such as Washington State and Colorado, have made significant changes in their state laws making marijuana legal for adults to use recreationally.  Notably, these states have also provided a legal supply chain for the production and sale of marijuana. This November, Colorado will ask voters to approve a 15 percent Marijuana excise tax to help fund school construction and to vote upon a 10 percent tax to help pay for marijuana regulatory enforcement.   There are even discussions which consider that these taxes will not cover the expense of legalization.  As is suggested by the most recent ballot initiative in Portland, Maine, to make possession of marijuana by adults of less than 2.5 ounces legal, might it be possible that Maine could be the next state to legalize marijuana statewide?

In the event that Maine does choose to legalize the cultivation, sale, and possession/ use of marijuana, it is important to understand that such a change in Maine’s law would create a conflict with federal laws, under which marijuana remains illegal, period.

Federal Law States Marijuana is Illegal

Even if Maine changes the status of marijuana to a legal substance, akin to alcohol or tobacco products, this does not change the Federal law, in which marijuana remains an illegal drug.

In the federal law, the severity of the crime pertaining to marijuana depends on the weight of the marijuana seized by federal drug enforcement.  In turn, the weight of the marijuana determines the sentence the offender would receive according to the Federal Sentencing Guidelines.  Overall, in federal criminal prosecutions, there is not a lot of “wiggle-room” for a defendant to reduce a sentence after the weight of the marijuana has been confirmed.

One of the federal rationales for continuing to clamp down so hard on marijuana despite changing attitudes is that the illegal sale of marijuana tends to support financially illegal drug operations, such as gangs and cartels, who work across many states at one time, and who sell much harder and harmful drugs, such as cocaine and heroin, and who commit other violent crimes.

Certainly it is a legitimate interest of government to keep the public safe from harm from the dangers posed by these large and violent criminal networks.  At the same time, unlike other kinds of illegal drugs, which are either manufactured or “cooked” and then shipped long distances, marijuana is a plant that needs to be grown.  As a result, marijuana production can be a “local” operation.  What might happen if in all 50 States, marijuana were grown, sold, and possessed legally and locally?  Could this not take a significant financial bite out of the bottom line of criminal operations if they can no longer sell illegal marijuana because it can be purchased legally?  While this might not shut down these large networks, it might trigger a shift in how these organizations “do business.”

What can happen because of this conflict of laws?

When Colorado announced its change of laws legalizing marijuana, the Federal drug enforcement agencies noted that it would not enforce federal laws within the State’s legal marijuana infrastructure.  Instead, the federal laws that would continue to be enforced would include those preventing interstate trafficking of marijuana, among other stated federal interests.  In other words, while the federal government has indicated that it would not interfere with an intra-state operation, if that operation extended beyond the State’s boundaries, then the federal law that marijuana is illegal would supersede the State law that marijuana is legal.

From a policy perspective also, it might not be worth it to expend limited time and resources for the Department of Justice to send out drug enforcement agents to enforce federal laws in States that have made marijuana legal.

Therefore, if Maine legalized marijuana, then technically it remains possible that federal drug enforcement can be dispatched to enforce federal law in Maine despite State law if the federal agencies feel such enforcement is necessary.  Any such enforcement would certainly be disruptive and potentially damaging economically for the community that had received the enforcement.

How can this conflict of laws be alleviated?

Without a similar change in the federal law to be a closer match to State law, having marijuana legal on the State level but illegal on the federal level will continue to be a conflict.  One way that the federal agencies have coped thus far simply is to not pursue enforcement of all federal marijuana laws where the drug has been made legal on the State level.  Another means of change might occur in the future if many more States, such as more than half, decide to legalize marijuana.  In this instance, the federal laws might be more encouraged to change their position.

Overall, this post has simply described the conflict between federal and State law if Maine ever decided to legalize marijuana completely.  Currently in Maine, marijuana is still an illegal drug if possessed in amounts over 2.5 ounces, as well as in terms of furnishing, cultivation, and trafficking.  However if you enjoyed reading this speculation, you may also want to check out:

• With Maine legalizing Marijuana what will the future impacts be?
• What if Marijuana was legal in Maine?

In Maine, marijuana is still an illegal substance if you do not have a medical prescription.  Nevertheless, attitudes have been changing towards a more lenient position towards casual use of the substance.  Other States, such as Washington and Colorado, have already legalized marijuana, and others are seeking to do the same.  This November 2013, Portland City residents are being asked to vote on an initiative that would make the possession of up to 2.5 ounces of marijuana legal.  However, the purchase and sale of marijuana would remain illegal.  What follows is my “educated guess” of what things might look like if Marijuana was legal in Maine covering the possession, sale, and cultivation.

De-criminalization of Use and Possession

Immediately, if marijuana was legal, it would benefit the section of clients I see who are charged with possession of marijuana and either end up with a civil violation or a criminal misdemeanor on their record.  Having a civil violation or a criminal conviction on your record, even if it is a low-level misdemeanor pertaining to marijuana, can affect people poorly in eligibility for student loans, as well as can impact people’s ability to find or maintain employment in certain fields.  If marijuana was legal, these clients, who otherwise are upstanding and productive citizens, would not have to suffer long-lasting consequences in their life and livelihood simply because they enjoy the occasional or recreational use or marijuana.

If Marijuana was legal what’s the Definition for Legal Marijuana

First, a new policy frame to view marijuana would be necessary.  Some might argue that already legal but addictive substances, such as alcohol and tobacco, are “too easy” to access and too often abused.  In my legal practice, domestic violence or violent crimes such as assault can be triggered or exaggerated by impairment due to alcohol.  And, as I have discussed in other articles, drunk driving in which a person consumes alcohol and then gets behind the wheel of a car is a rather common but nevertheless serious crime.  And multitudes of studies have shown how bad for your health tobacco use is.

However, given marijuana’s long status as an illegal drug, I do not imagine that the public would be willing to accept a level of access to marijuana on the same level as purchasing a bottle of wine sitting openly on the shelf at the local drug store.  Perhaps the policy frame could be a hybrid between alcohol and tobacco, wherein a person could not be sold legal marijuana unless they have reached the age of 21 (older than tobacco), the purchaser would have to show a valid State ID showing their age, and like cigarettes, the marijuana could be kept in a locked cabinet behind the counter at the retail store, perhaps next to the tobacco products.  For the still squeamish about marijuana, perhaps the product could even be stored in a back room of the retail space, not accessible unless obtained by a salesperson.  If marijuana was legal, the Maine State governance would need to have some good productive discussions on handling the details of legal for whom?

Impact on Maine’s Medical Marijuana Laws

If marijuana was legal in Maine, then the most difficult policy challenge for our legislators could be what to do with Maine’s existing Medical Marijuana Law, which in itself took many years to get passed and become accepted by the community.

Logically, if marijuana was legal entirely, then the distinction made by the Medical Marijuana Law between “medical marijuana” and “non-medical marijuana” would become insignificant.  It would not matter how much of a legal substance that someone had in his or her home, or for what purpose he or she has the legal substance.

Legalization an Economic Development Opportunity

In terms of the production, growing and cultivation of marijuana, I think that Maine’s existing Medical Marijuana Law can be instructive.  Already in the Medical Marijuana Law, there are people approved by the State to grow marijuana for medical patients, called Caregivers.  In addition to growing plants, Caregivers can produce marijuana products for patients, such as marijuana-laced cookies for patients that do not wish to smoke the substance.

What if Maine’s Medical Marijuana Caregivers were changed into local Product Producers for safe legal marijuana?  To meet demand, the State could hire, train, and regulate these local product producers, who would earn an income and pay taxes.  This could mean jobs for Mainers.  In this way, legalization of marijuana could be an opportunity for State-level economic development.  So if Marijuana was legal in Maine, could we have a new industry?

Legal Marijuana Would be a Safer Product

We are all familiar with the horror stories of the ugly things that can happen when completely unregulated consumer products that are adulterated or modified enter the market.  Illegal drugs by their very nature are completely unregulated.  For example, in some illegal marijuana operations across the country, cultivators add tiny glass beads to the buds in order to make the product look more “valuable” than it actually is, and all in order to get a higher price.  But, when the adulterated or modified marijuana is smoked, the tiny glass beads can become highly dangerous to your health.

In contrast, the supply chain of legal marijuana could be tracked from the seeds, the farm, the local distributor, to the retail store, similar to the process we have for tracking produce from the farm to the grocery store.  And, regulation means that there could be State safety inspectors to make sure that the product is not adulterated or modified in any way.  If Marijuana was legal in Maine, what would the safety and quality controls be?

Criminal Acts Focus on Growers and Sellers

Even if the use and possession of marijuana was legal, it does not mean that there would be no criminal charges in connection with marijuana at all.  Instead of focusing on the consumers, the new criminal law for legal marijuana might focus on offenses pertaining to the cultivation and sale of marijuana.  Being an unlicensed seller, selling marijuana to minors, and the classic criminal charge of Trafficking would all still remain criminal acts.

In order for the criminal charges to have a deterring effect, any consequences or penalties would need to be serious enough to impact legal producers and sellers as well as illegal traffickers.  Already, illegal drug trafficking is considered a felony crime.  Perhaps producers and sellers should also face similar felony charges if a crime is committed.  For a Class C felony, the least severe felony in Maine, the maximum penalties include fines up to $5,000.00 and up to 5 years jail time.

Legalization could Mean Tax Revenue

Just because something is legalized does not mean that it would not be heavily regulated and taxed by the State.  Generally, the public is willing to accept a higher tax on items that are addictive, since they would “buy them anyway.”  In the case of legal marijuana, I believe that the public would accept a relatively high tax as another means of limiting access.  In turn, this tax could be used to support the continuing regulation and inspection of the product.

An Opportunity to Study and Treat Marijuana Addiction

In the cases of alcohol and tobacco, people often get addicted, and they can face a difficult road in breaking away from their habit.  Industries have thrived on creating products to help people quit smoking tobacco cigarettes, and treatment facilities and self-help programs, such as Alcoholics Anonymous, never seem to run out of people to help.  It is likely that something similar can be expected from marijuana if it were legalized.

Like any legal substance with potential for addiction, some people do not get addicted, and some do.  For those that do become addicted and want to quit, I would imagine that as a society we would want to help people to overcome their addiction.  People often do not seek treatment if they are addicted to illegal drugs because they do not want to admit to their friends or family that they took illegal drugs.  The criminal court system and corrections systems are not designed to treat addiction.  While Maine does have a Drug Court, this only scratches the surface of the number of people who would benefit from a more traditional, non-stigmatized, means of addressing their addiction.

Moreover, if marijuana was legal in Maine, the substance could be studied by medical research labs to find better ways to help people quit, and we might even come up with a better understanding of the substance’s potential as a medicine for certain illnesses.  I would be interested to see what this type of research would be able to find.

Overall, while all of this discussion has been purely speculation, the decision and ultimate outcome will be up to Maine voters and Maine’s elected representatives.

If you enjoyed this speculation of what if Marijuana was legal in Maine? You may also like reading:

• With Maine legalizing Marijuana what will the future impacts be?

In Maine, marijuana is still an illegal substance if you do not have a medical prescription.  Nevertheless, attitudes have been changing towards a more lenient position towards casual use of the substance.  Other States, such as Washington and Colorado, have already legalized marijuana, and others are seeking to do the same.  This November, Portland residents are being asked to vote on an initiative that would make the possession of up to 2.5 ounces of marijuana legal.  However, the purchase and sale of marijuana would remain illegal.  What follows is my “educated guess” of what things might look like with Maine legalizing Marijuana completely; possession, sale, and cultivation.

De-criminalization of Use and Possession

With Maine legalizing Marijuana, it would immediately benefit the section of clients I see who are charged with possession of marijuana and either end up with a civil violation or a criminal misdemeanor on their record.  Having a civil violation or a criminal conviction on your record, even if it is a low-level misdemeanor pertaining to marijuana, can affect people poorly in eligibility for student loans, as well as can impact people’s ability to find or maintain employment in certain fields.  If marijuana were legal, these clients, who otherwise are upstanding and productive citizens, would not have to suffer long-lasting consequences in their life and livelihood simply because they enjoy the occasional or recreational use or marijuana.

A New Definition for Legal Marijuana

First, a new policy frame to view marijuana would be necessary.  Some might argue that already legal but addictive substances, such as alcohol and tobacco, are “too easy” to access and too often abused.  In my legal practice, domestic violence or violent crimes such as assault can be triggered or exaggerated by impairment due to alcohol.  And, as I have discussed in other articles, drunk driving in which a person consumes alcohol and then gets behind the wheel of a car is a rather common but nevertheless serious crime.  And multitudes of studies have shown how bad for your health tobacco use is.

However, given marijuana’s long status as an illegal drug, I do not imagine that the public would be willing to accept a level of access to marijuana on the same level as purchasing a bottle of wine sitting openly on the shelf at the local drug store.  Perhaps the policy frame could be a hybrid between alcohol and tobacco, wherein a person could not be sold legal marijuana unless they have reached the age of 21 (older than tobacco), the purchaser would have to show a valid State ID showing their age, and like cigarettes, the marijuana could be kept in a locked cabinet behind the counter at the retail store, perhaps next to the tobacco products.  For the still squeamish about marijuana, perhaps the product could even be stored in a back room of the retail space, not accessible unless obtained by a salesperson.

Impact on Maine’s Medical Marijuana Laws

If marijuana were legalized in Maine, then the most difficult policy challenge for our legislators could be what to do with Maine’s existing Medical Marijuana Law, which in itself took many years to get passed and become accepted by the community.

Logically, with Maine legalizing Marijuana eventually it will be completely legal, then the distinction made by the Medical Marijuana Law between “medical marijuana” and “non-medical marijuana” would become insignificant.  It would not matter how much of a legal substance that someone had in his or her home, or for what purpose he or she has the legal substance.

Maine Legalizing Marijuana provides an Economic Development Opportunity

In terms of the production, growing and cultivation of marijuana, I think that Maine’s existing Medical Marijuana Law can be instructive.  Already in the Medical Marijuana Law, there are people approved by the State to grow marijuana for medical patients, called Caregivers.  In addition to growing plants, Caregivers can produce marijuana products for patients, such as marijuana-laced cookies for patients that do not wish to smoke the substance.

What if Maine’s Medical Marijuana Caregivers were changed into local Product Producers for safe legal marijuana?  To meet demand, the State could hire, train, and regulate these local product producers, who would earn an income and pay taxes.  This could mean jobs for Mainers.  In this way, legalization of marijuana could be an opportunity for State-level economic development.

Legal Marijuana Would be a Safer Product

We are all familiar with the horror stories of the ugly things that can happen when completely unregulated consumer products that are adulterated or modified enter the market.  Illegal drugs by their very nature are completely unregulated.  For example, in some illegal marijuana operations across the country, cultivators add tiny glass beads to the buds in order to make the product look more “valuable” than it actually is, and all in order to get a higher price.  But, when the adulterated or modified marijuana is smoked, the tiny glass beads can become highly dangerous to your health.

In contrast with Maine legalizing Marijuana, the supply chain of legal marijuana could be tracked from the seeds, the farm, the local distributor, to the retail store, similar to the process we have for tracking produce from the farm to the grocery store.  And, regulation means that there could be State safety inspectors to make sure that the product is not adulterated or modified in any way.

Criminal Acts Focus on Growers and Sellers

Even if the use and possession of marijuana were legalized, it does not mean that there would be no criminal charges in connection with marijuana at all.  Instead of focusing on the consumers, the new criminal law for legal marijuana might focus on offenses pertaining to the cultivation and sale of marijuana.  Being an unlicensed seller, selling marijuana to minors, and the classic criminal charge of Trafficking would all still remain criminal acts.

In order for the criminal charges to have a deterring effect, any consequences or penalties would need to be serious enough to impact legal producers and sellers as well as illegal traffickers.  Already, illegal drug trafficking is considered a felony crime.  Perhaps producers and sellers should also face similar felony charges if a crime is committed.  For a Class C felony, the least severe felony in Maine, the maximum penalties include fines up to $5,000.00 and up to 5 years jail time.

Legalization could Mean Tax Revenue

Just because something is legalized does not mean that it would not be heavily regulated and taxed by the State.  Generally, the public is willing to accept a higher tax on items that are addictive, since they would “buy them anyway.”  In the case of legal marijuana, I believe that the public would accept a relatively high tax as another means of limiting access.  In turn, this tax could be used to support the continuing regulation and inspection of the product.

An Opportunity to Study and Treat Marijuana Addiction

In the cases of alcohol and tobacco, people often get addicted, and they can face a difficult road in breaking away from their habit.  Industries have thrived on creating products to help people quit smoking tobacco cigarettes, and treatment facilities and self-help programs, such as Alcoholics Anonymous, never seem to run out of people to help.  It is likely that something similar can be expected from marijuana if it were legalized.

Like any legal substance with potential for addiction, some people do not get addicted, and some do.  For those that do become addicted and want to quit, I would imagine that as a society we would want to help people to overcome their addiction.  People often do not seek treatment if they are addicted to illegal drugs because they do not want to admit to their friends or family that they took illegal drugs.  The criminal court system and corrections systems are not designed to treat addiction.  While Maine does have a Drug Court, this only scratches the surface of the number of people who would benefit from a more traditional, non-stigmatized, means of addressing their addiction.

Moreover, if marijuana were legal in Maine, the substance could be studied by medical research labs to find better ways to help people quit, and we might even come up with a better understanding of the substance’s potential as a medicine for certain illnesses.  I would be interested to see what this type of research would be able to find.

Overall, while all of this discussion has been purely speculation, the decision and ultimate outcome will be up to Maine voters and Maine’s elected representatives.