Friday, February 24, 2012

Medical Marijuana Law Needs Clarification, But Should We Decriminalize Marijuana? - Part 2

In my February 18, 2012 blog posting of "Medical Marijuana Law Needs Clarification, But Should We Decriminalize Marijuana?" , I said that "I will be exploring this [marijuana] issue further, looking at the difference between “legalizing the use of marijuana” vs. “decriminalizing the use of marijuana”, or if there is any difference at all. Then I intend to work with others interested in this issue to craft a solution. I do not support a people’s referendum on this issue, as once enacted, any tweaks found to be beneficial in the future would require a ¾ vote in both houses of the legislature, which is always very difficult to get." This blog posting addresses those issues.

Legalizing vs. Decriminalizing the Use and/or Possession of Marijuana

Marijuana is an illegal Schedule 1 drug under the federal Controlled Substances Act (CSA). CSA is Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (84 Stat. 1236, 21 U.S.C. Section 801 et seq.). CSA does not recognize the medical use of marijuana. In fact, in Gonzalez v. Raich, 545 US 1 (2005), the U.S. Supreme Court held that the federal law superseded the California Compassionate Use Act under the U.S. Constitution Commerce Clause, even where the marijuana was personally grown for the litigants' personal use allegedly for medicinal purposes only.

Under our system of government, the U.S. Supreme Court is the final arbiter on what the Constitution is. Therefore, any state law that attempts to "legalize" marijuana is likely to be found to be preempted by the federal law, as unconstitutional. As a State Representative, I swore an oath to uphold the state and federal Constitutions, so proposing a bill that violated the Constitution is not proper. Therefore, I favor decriminalizing marijuana, rather than legalizing marijuana as in the "Committee for a Safer Michigan" proposed constitutional amendment.

"Constitutional Amendment To End Marihuana Prohibition In Michigan

A Petition to amend the Michigan Constitution, Article 1, to add:

Article 1 Section 28. Repeal of Marihuana Prohibition.

For persons who are at least 21 years of age who are not incarcerated, marihuana acquisition, cultivation, manufacture, sale, delivery, transfer, transportation, possession, ingestion, presence in or on the body, religious, medical, industrial, agricultural, commercial or personal use, or possession or use of paraphernalia shall not be prohibited, abridged or penalized in any manner, nor subject to civil forfeiture; provided that no person shall be permitted to operate an aircraft, motor vehicle, motorboat, ORV, snowmobile, train, or other heavy or dangerous equipment or machinery while impaired by marihuana."

In addition to the federal preemption/Constitutional problem, a law enacted by voter initiative in Michigan faces another thorny problem. Once enacted, such a law enacted by initiative may only be amended by the legislature with a 3/4 vote in both the House and the Senate, and signed by the Governor. Such a supermajority is extremely difficult to achieve, so problems or ambiguities such as in the Michigan Medical Marijuana Act are difficult to cure or clarify. Presumably, amendments passed by simple majorities of the legislature which clarify the Act but which do to make obtaining marijuana more difficult would pass legal muster, but more restrictive amendments would likely fail.

Questions that the proposed constitutional amendment would not address are suggested in this Q and A about the Medical Marijuana Act:

"Question: Where can I consume medical marihuana?
Answer: Presuming you are registered with the state patient registry and carrying your registry identification card, you may consume medical marihuana on your property or elsewhere. However, the law does not permit any person to do any of the following:
  (1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.
  (2) Possess marihuana, or otherwise engage in the medical use of marihuana:
  (a) in a school bus;
  (b) on the grounds of any preschool or primary or secondary school; or
  (c) in any correctional facility.
  (3) Smoke marihuana:
  (a) on any form of public transportation; or
  (b) in any public place.
  (4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.

Question: I live within 1000 feet of a school, AKA a "drug free zone". Can I still grow and/or possess my medical marihuana there?
Answer: The MMMA does not address this issue.",4601,7-154-27417_51869_52140---,00.html

The proposed amendment would not address issues of location, amounts, etc. which probably should be more restrictive than stated in the proposed amendment.

Issues in Decriminalizing the Use and Possession of Marijuana

If we were to decriminalize marijuana, the question arises of "Just what activities would you wish to decriminalize and which activities would remain criminal acts?"

First, let's look at what the specified marijuana crimes are and their punishments. Here is what I have found online regarding Michigan Marijuana Crimes and Punishments and cross referenced with the Michigan Compiled Laws via .




Marijuana Use

Misdemeanor MCL 333.7404(2)(d)

90 days



1st Offense

Misdemeanor MCL 333.7403(2)(d)

1 year


2nd Offense

Felony MCL 333.7413(2)

2 years


In a park

Misdemeanor or Felony .7410a

2 years


Manufacture, Delivery or Possession with Intent to Deliver

Less than 20 Plants

Felony MCL 333.7401(2)(d)

4 years


20 to 200 Plants

Felony "

7 years


200 or more Plants

Felony "

15 years


Less than 5 Kilograms

Felony "

4 years


5 to 45 Kilograms

Felony "

7 years


45 Kilograms or more

Felony "

15 years


License sanctions for any marijuana charge

1st Offense

6 month suspension MCL 333.7408a(1)(a)

2nd Offense in 7 years

1 year suspension MCL 333.7408a(1)(b)

"Marijuana Laws in Michigan

LegalMatch Law Library Managing Editor, Ken LaMance, Attorney at Law

Can I be Arrested in Michigan for Carrying Around a Small Amount of Marijuana for my Own Personal Use?

Yes you can, but the punishment will probably not be very severe.  Michigan is unusual in that it makes very little distinctions between its marijuana offenses (it does not separate most of the crimes by age or weight of drug), so that the crime is solely for the act itself.

In Michigan, possession of any amount of marijuana is a misdemeanor that carries a $2,000 fine and a maximum of a year in jail.  Actually smoking marijuana (a separate crime) in any location, including your house, is also a misdemeanor, but will only get you 90 days in jail and a $100 fine.  However, conditional discharge is available in all use and possession cases, which means that the judge has wide discretion to use alternative sentencing (rehab, community service, etc...) for first time offenders.  Usually, conditional release lets a person opt for probation rather than trial. After successfully completing probation, the individual's criminal record does not reflect the charge.

A more serious crime is smoking marijuana in [or within 1000 feet of] a public or private park, which can even be deemed a
felony at a judge's discretion, and this crime carries a 2 years sentence.  But it too is conditional, so the judge may offer you probation instead (on the first offense only). 

So Michigan has Fairly Lax Marijuana Laws?

Concerning possession and use, yes.  But Michigan also has some of the most severe cultivation laws in the country.  Marijuana cultivation of ANY KIND is a serious felony, with the minimum punishment being 4 years in state prison and a $20,000 fine.  If the cultivation is more than 20 plants, both the sentence and the fine shoot up to 7 years in prison, and $500,000, respectively.  The final category of cultivating 200 or more marijuana plants more than doubles the time in prison (to 15 years) and assigns an astounding $10,000,000 fine. 

What About Sales or Deliveries?

Like most states, Michigan allows for delivery without remuneration (lawyerspeak for "gifts") of marijuana to be classified as simple possession (1 year sentence, $1,000 fine).  Unusually though, Michigan puts no weight restrictions on the gift, so technically "giving" someone 20 kilos of marijuana would get the same penalty as giving them a single joint (it is unlikely that a judge will agree to this, however). 
The crime of selling marijuana mirrors the cultivation 4-7-15 year punishments (and fines) exactly.  The division of the crime is done by weight, however, instead of number of plants (the three divisions being less than 5 kg, 5 - 45 kgs, and more than 45 kgs).  This means that most sales (the vast vast majority of which are under 5 kgs) will result in a felony with a 4 year minimum sentence."

Activities that would be protected under the Committee for a Safer Michigan proposed constitutional amendment:

  • religious, medical, industrial, agricultural, commercial or personal use,
  • possession or use of paraphernalia
  • possession,
  • ingestion,
  • presence in or on the body,
  • marihuana acquisition,
  • cultivation,
  • manufacture,
  • transfer,
  • sale,
  • delivery,
  • transportation

I have re-organized the list from the amendment into a potential hierarchy of activities, with the ones on the top probably the most acceptable, with decreasing acceptability as you go down the list. In other words, would we want to keep manufacture, sale or delivery as crimes? Or only over certain amounts?


This warrants much discussion, but I also provide the MPP Model State Decriminalization Bill  proposed by the Michigan Marijuana Project. Note that it decriminalizes the use or possession of one ounce of marijuana or less, and makes it a civil offense instead. Does this go far enough? If we really wish to lessen the mass incarceration of African Americans AND significant reduce the cost of police enforcement, the courts and corrections, we may need a much bolder change in the laws, without going so far as the proposed constitutional amendment would.

Based on the chart above of the marijuana violations and penalties, I could see elimination of the criminal charges of use and possession, as well as the license sanctions for marijuana charges (i.e., revising or repealing, MCL 333.7404(2)(d), .7403(2)(d), .7410a, 7408a(1)(a), and 7408a(1)(b). Whether we did anything with the manufacture, delivery or possession with intent to deliver violations under .7401(2)(d), depend on whether we wanted to create a decriminalized market for marijuana to allow the market supply and demand drive down the cost of marijuana to eliminate the criminal black market. To the extent that marijuana is available without violation of Michigan law, perhaps there will be little incentive for any drug dealer to possess 45 kilograms or more. The large drug dealers might well be left for the federal government.

The activities prohibited under the Medical Marijuana Act in the Q and A above could apply similarly to any marijuana use. The use and possession by minors could be handled similar to how the cigarette laws are currently. An enhanced drug awareness and treatment program, as mentioned in the model act below, might be worth considering.

1 comment:

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