Contributed by: Mediumdave submitted: June 8, 2003
How can I find the laws in my state?
There are a lot of posts around here along the lines of, “What are the laws in my state about growing a few plants?” This is a difficult question to answer, since state laws vary, and individual circumstances can be important. Nevertheless, this post will try to help you answer the question yourself. In addition, I will try to provide a little information about other aspects of the criminal law system.
Why Should You Care?
You should find out what the law is so that you can (hopefully) avoid or minimize your criminal liability. Never place confidence in a “technical” legal defense; your best defense is always not to get caught. (“The first rule of growing plants is, we do not talk about growing plants.”) If you do get caught, you may be able to minimize your punishment by tailoring your grow inside legal parameters.
Here’s an example. Suppose you live in Kentucky and you decide to grow “a few” plants in your closet. If you search the Kentucky Revised Statutes online, you will find that there are statutes that prohibit both the possession and “cultivation” of marijuana. If you read the cultivation statute: “A person is guilty of marijuana cultivation when he knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it.” KRS 218A.1423(1). Then it breaks down the penalty - for a first offense, “fewer than five” plants is a misdemeanor, “five or more” is a felony. So that means: (1) if you grow no more than FOUR plants, you only commit a misdemeanor; (2) regardless, the state has to show that you intended to sell/transfer it or you do not violate the statute. (Instead, you’d be guilty of marijuana possession. DON’T plan on relying on this defense too much, though, as discussed later.) By keeping yourself at or below 4 plants, you can keep yourself from getting charged with a felony. This is a big consideration because a felony conviction means loss of voting rights and gun rights and is a death sentence for professional or quasi-professional employment.
Finding the Law
Most of the law that you need to find will be in your state’s published statutory code, e.g., the Oregon Revised Statutes (ORS), the Pennsylvania Consolidated Statutes Annotated (Pa. C.S.A.), the Montana Code Annotated (MCA), etc. Normally the code is organized topically, so most of the laws you are interested in should be located in the same chapters, titles, etc. of the code. (In other words, the statutes prohibiting cultivation and possession are probably in the same portion of the code - the part labeled “Marijuana” or “Controlled Substances”, something like that.) If you go to the library and used the bound copies, you can look in the index under “marijuana”, “marihuana”, “cannabis” etc. Take a piece of paper and write down the cites of statutes that look like they might be pertinent, then look up those statutes in the code. Be sure to check around the statutes for other related laws. I usually get a list of the laws that look like they are right, then look in the chapters, etc. that those laws fall in to try and find everything. It takes a little while because you have to piece together different statutes. State law might make the possession of “any controlled substance” a felony, but then there might be a separate provision providing that if the controlled substance is ounce or less of marijuana, then the crime is only a misdemeanor.
You can do this online easily. Every state I have checked on publishes their state code online, usually through the state legislature. A great place to get links to state code databases is http://www.findlaw.com Follow the links to “States” and then selected your state, and finally, “statutory compilations”. I suggest you start out by doing a search for words (marijuana, marihuana, cannabis), and then identifying the parts of the code in which relevant laws fall. Then use a “table of contents” function to read through the relevant areas of the code. Your search for keywords will yield a lot of responses, only some of which are relevant, and it will probably miss some relevant statutes as well. That’s why you should read through the relevant chapters, etc. of the code, not just through the statutes that come up on your keyword search.
There are other places you might find relevant law. Sometimes when a state legislature (or Congress) passes a law, it delegates interpretive authority to an agency. Example: Under federal law, DEA is delegated authority to place drugs in the various “schedules”. You may recall that NORML successfully overturned DEA’s classification of marijuana in Schedule I (meaning, DEA concludes it has no accepted medical value) in the 1980s, only to have DEA put it back in Schedule I. (And thus the possession of marijuana under a prescription still violates federal law, because Schedule I drugs cannot be prescribed.) If the legislature has delegated authority to an agency, you will probably find a reference to that in the statutory law. For example, 21 U.S.C. 841a is a federal law that prohibits the possession of controlled substances. It directs the Attorney General to establish “personal use” quantities. If a person possesses less than the “personal use” amounts, then the government can charge a violation of 841a, which is an administrative (non-criminal, no incarceration possible) violation (similar to a parking ticket, but with a much higher fine). But, to find out what a “personal use” quantity is, you have to look up the Attorney General’s determination, which is published in the Federal Register. (For your own information, less than 1 ounce of marijuana or concentrated marijuana (hash), but no quantity of hash oil, is a personal use amount. Also note that the federal government can instead charge you with the crime of possessing controlled substances, 21 U.S.C. 841. Charging an administrative violation under 841a is optional for the government.)
It is also possible that relevant law, passed by the legislature, might not be published in the state code. This could be because the law was passed recently and has not yet been added to the official state code, or it could be because the state code simply hasn’t published the law. All passed laws are contained in “legislative reports” or “acts” that you can search online or at a law library. It is relatively unlikely that a pertinent, in-force marijuana law would not be published in the state code. Also note that a law that was passed and is published in a legislative report may no longer be valid - the law might have been repealed or modified legislatively. Your best place to check is in the state code, since this will normally show the up-to-date version of a particular statute.
Finally, judicial decisions may provide relevant law. Judicial decisions are the prior decisions of courts. Under the principle of stare decisis, one courts prior decision is normally “binding” on future courts of the same jurisdiction, although courts can “overturn” prior cases and establish new law. Generally, judicial decisions simply interpret statutory law. However, these interpretations are important because the statutes themselves may be somewhat vague. In the Kentucky example mentioned above, the Kentucky state courts have probably interpreted the intent to sell distribute part of the statute and research into prior decisions might provide guidance on what constitutes intent to sell.
Additionally, judicial decisions can limit the effect of published law. Normally this occurs because a court determines that some application of a statute violates federal or state constitutional law. One example of this in the marijuana context is the Alaska Supreme Courts decision in State v. Ravin. In Ravin, the Alaska court concluded that the right of privacy guaranteed by the Alaska state constitution protects adults from prosecution for marijuana possession in the home, so long as there is no distribution and the amounts are sufficiently small. By reading cases following Ravin, one can determine the boundaries of this constitutional protection - how many plants can you grow, or how much can you possess, and still be under the protection of the Ravin decision?
It is more difficult to research judicial decisions (case law) because most case law is not published online. (One exception is California. You can find links to good databases of California Supreme Court and appellate court decisions at findlaw.) You can determine what is available by going to findlaw and looking up your state, then selecting “court opinions” or something similar. To really research case law, you need to do one of two things:
(1) use an expensive online legal service, like Westlaw, Lexis, or Loislaw; or (2) go to a library that has published judicial reports and research. Your local public library may have these (call and ask), but a local law library will surely have them. You can likely find a law library at a courthouse (or they can direct you where to find one) or at a law school. This is all I will say about judicial decisions; it would take another post altogether to explain how to do case law research.
Understanding the Law
States and the federal government use varied means to enforce the prohibition of cannabis. Virtually all governments prohibit the “possession” of marijuana and other controlled substances, and most governments create more serious crimes, or more serious classes of possession. There are 3 general ways I know of in which states prohibit marijuana: by quantity, by intent, and by activity. The penalties for these three classes of activity vary quite a bit. In some jurisdictions, small-quantity possession is a non-criminal offense (punishable by ticket and fine only), while possession of a greater quantity, or cultivation, or sale, may be a misdemeanor or a felony with a much greater penalty.
Determining what your state’s laws are allows you to tailor your actions to minimize criminal liability. Many states do not prohibit along all 3 lines (quantity, intent, activity) Some states do not prohibit the cultivation of marijuana at all. (Example: New York.) Instead, a quantity-based possession law is used. In New York, possession of less than 2 ounces is an infraction, possession of more than 2 ounces is a misdemeanor, and possession of more than 8 ounces is a felony. (There are other weight-based classes that determine the severity of the infraction, misdemeanor, or felony. E.g., possession of more than 16 ounces is a more serious felony than possession of more than 8 ounces.) If you are caught with “a few plants”, the cops weigh the plants and figure out how much “marijuana” you possess. Obviously, if your plants are ready to harvest, they will weigh quite a bit more when they are cut down than after they are harvested, dried, and manicured. So weight-based laws pose a lot of risk, even if the thresholds are relatively high.
Most states key criminal penalties to “intent”. Possession with intent to distribute is almost always a more serious crime than “simple possession”. In some states (Kentucky and Virginia are examples), conviction for “manufacture” of marijuana requires that the prosecution prove that you intended to distribute the marijuana. If you live in a state with such a limitation, it may be worth doing case law research to see how the courts have construed the intent-to-distribute requirement. In any event, you should keep the quantity of marijuana involved very, very low because the DA will often make use of a police “expert” who will offer testimony like, “yeah, the guy only had 4 plants, but those 4 plants could have grown 6 feet tall each and yielded 1 pound of marijuana each” - complete bullshit, but this is the kind of stuff you have to watch out for.
So there you have it: Look for laws that prohibit cultivation/manufacture, look for laws that prohibit possession, and figure out what the quantity thresholds are. Also check for special statutes that prohibit broad classes of especially nefarious activity. Many states have “trafficking” or other laws that make broad categories of activity a serious crime. For example, a state law might call “trafficking” possession of more than 50 pounds and/or cultivation of more than 50 plants, and might provide a mandatory minimum sentence for such a violation.
You should pay especially close attention to cultivation statutes that are tied to the amount of marijuana grown. Many states consider cultivation a felony, but exempt small quantity cultivation as either not cultivation (punished as “possession”) or as a less-serious offense (e.g., a misdemeanor). States that I am aware of that (I believe) provide some sort of a “break” for small quantity growers include Kentucky, Maine, Vermont, Kentucky, and Virginia - but there are others.
One final note, and a bit of marijuana history. Americans have grown and used marijuana since the beginning of European “colonization” (a most inaccurate term). As you can see from my signature line, George Washington grew hemp in colonial Virginia, and historians have concluded that the reference to separating male and female plants dispositively indicates that Washington grew the plants for “medicinal” use. At the turn of the twentieth century, a movement developed to regulate and/or prohibit marijuana. This movement was somewhat racist in that it focused on those who were using marijuana (blacks, Chinese, Mexicans, Filipinos) and on inaccurate or unrealistic dangers of marijuana use (one poster: “a powerful narcotic in which lurks Murder! Insanity! Death!”). Not surprisingly, the first marijuana laws came from the western states with high immigrant populations. The federal government passed the Marihuana Tax Act in 1937. This act required a heavy tax to be paid on marijuana, but did not otherwise prohibit it. (Congress acted this way because, at the time, only the federal government’s constitutional power to tax and spend for the general welfare provided a power with sufficient jurisdictional reach to regulate private activity. More on this later.) Many states regulated marijuana in like fashion: not prohibiting the drug, but imposing a heavy tax on it. Since then, states and the federal government have simply prohibited marijuana. But, in many states marijuana tax laws are still on the book. Get caught with pot and you might get charged with not just “possession of marijuana,” but also with possessing untaxed marijuana.
Tactical Considerations
Your first consideration should be to avoid criminal liability and, notwithstanding that, to avoid a felony conviction. Some states punish small-quantity possession as a non-criminal offense. If you live in one of these states, you might consider just not growing. Suppose youre a prosperous business person in New York City. If you grow and your plants weigh more than 8 ounces (likely), thats a felony. Maybe its easier to just pay for weed and never have more than 2 ounces in your home, than to chance a felony conviction.
You should always avoid acts that are felonies if at all possible. There are a lot of reasons for this. First, the police and the prosecution will probably be more “blood-thirsty” if they have you on a felony charge as opposed to a misdemeanor charge. Second, the stigma of a felony conviction is much greater than that of a misdemeanor. Finally - most importantly - a felony conviction can really, really screw up your life. You lose the right to vote, you can’t own guns, you don’t qualify for a number of professional and occupational licenses, you will find it difficult to find employment (especially in a professional setting), and for the rest of your life, you are a “convicted felon”. And you are also a lot more likely to receive a jail sentence. Avoid that if you can.
You may be able to cut a “deal” with the prosecutor in exchange for more lenient treatment. The deals depend on state law and local practice. They may offer to let you escape with a fine, rehabilitation, probation, and drug testing, and promise to dismiss the criminal charges against you after a period of time if you comply with the conditions. Or they may allow you to “plead out” of one charge in exchange for a guilty plea to a lesser charge.
If you get caught, you should immediately do two things. First, do not provide information to the police, no matter how nicely they ask, what they say they might be able to do for you, or how empathetic they act. Police officers are trained to befriend you and win your confidence in order to persuade you to provide incriminating information. Some people think that they can win a better shake by being “cooperative” and providing some information, but nothing that seems that important. This is a mistake. Police and prosecutors will use your statements against you, even ones you think don’t matter, to impeach your credibility and to show that you are in fact guilty. Example: "Mr. Smith said that he used marijuana occasionally but denied any knowledge of a marijuana growing operation at his home. He stated that he did not purchase or sell marijuana and that he did not know anyone in the area who did. Later, Smith explained that a roach found near his couch had been left by a friend. Smith also later said that he “normally didnt buy marijuana because it was too expensive, but that when he had it had only been in very small quantities”. Smith confirmed that he is the sole owner and occupier of the premises. Politely tell the police officers that you would like to be able to discuss the matter with them, but that since it appears they are considering criminal prosecution against you, you have no choice but to refer this matter to counsel. Explicitly invoke your right to an attorney and explicitly tell the police that you do not wish to speak with them. But be polite; it does pay to be “cooperative”, it just doesn’t pay to talk.
Besides not talking to the police, you should also not talk with the prosecutor’s office, nor should you talk to other people in jail. Be very, very careful when talking to anyone else. Your “friend” could have his own charge pending and might get himself off by revealing the contents of your conversation to the police. A lawyer that you have retained or are considering retaining (discussing your case with) is normally a “safe” person because of the attorney-client privilege; however, you should never discuss ongoing or future criminal activity with a lawyer, since this information is not subject to the privilege, and the lawyer could even be required to disclose the information by bar association rules.
The second thing you need to do is get a lawyer. When shouldnt you get a lawyer? That’s your choice, but your ability to successfully defend yourself is greatly increased by the presence of counsel. By refusing to provide information to the police, you create a situation in which a good lawyer has the best chance of getting you off. A lawyer provides knowledge of search and seizure laws, charging procedures, trial procedure, substantive law, and (not least importantly) of the availability of alternative punishments. The only time when I would consider moving without a lawyer is if I was charged with a possession-only offense and the DA’s office was willing to negotiate a plea or deferred sentencing arrangement with me directly. (Note that some DA’s wont do this.) I might call the DA’s office and say something like, “Hi, I’m john doe and I have a current charge for possession of marijuana pending. Its a first offense, and I was wondering if your office would be willing to discuss the possibility of a deferral agreement, since I really dont want this to go on my record”. See what they say.
If you dont have a lawyer and cannot afford one, the state must provide one to you if you face the possibility of jail. The quality of public defenders varies greatly, but many are individuals of excellent repute who have elected to forego the money of private practice in order to “do something for society”. You should not assume that just because someone is a public defender, they are a “bad lawyer”. At the same time, you will generally get better representation with private counsel. A private attorney can devote more time to your case and may have superior lawyering abilities.
Now look, the quality of attorneys varies greatly. Some practice criminal law because they’re lousy lawyers and can’t get higher-paying work; some practice criminal law because they are excellent trial lawyers and like trying cases. The fact that an attorney is listed in the NORML legal directory basically means that they have paid some cash to NORML. While I commend donations to NORML, don’t assume that someone is a “great marijuana lawyer” just because they’re on the NORML list. Don’t assume that a lawyer is better just because he or she costs more. If you’re going to get a lawyer, get a good one.
How do you do that? A good bet is to check with people who know who the good criminal lawyers are. A friend who is a non-criminal attorney may be able to provide a good name. A friend who is a cop or prosecutor can give you a good name. Or get creative, ask a court clerk if they can tell you who does a bang-up job with criminal work.
You can also check with Martindale-Hubbell. Martindale publishes a directory of all the lawyers in America. They also solicit ratings of attorneys from other attorneys. Attorneys in the directory rated with an A, B, or C. Many attorneys are unrated (Martindale doesn’t have enough responses to publish a rating). Get a lawyer who works in criminal law and has an A or B rating. You can search the Martindale database for free at http://www.martindale.com; look for someone in your general area who practices criminal defense.
What do you want in a lawyer?
In a nutshell, you want someone who has experience trying cases, who has experience in criminal law, and who is familiar with the court in which you are charged. You want your lawyer to be well-respected; dont get a shady one. Questions you should ask to determine competency: what criminal cases have you tried? how much have you dealt with the crime(s) I am charged with? how often have you worked in this court? what do you know about this DA’s office? do you know anyone who works there?
About Federal Law
Once you’ve determined what your state’s law is, there is still the federal government. (Case in point: medical marijuana raids by the federal government in California.) Federal law prohibits both possession and cultivation. Federal law provides for a mandatory minimum sentence of 5 years for 50 plants, 10 years for 100 plants. Growing any quantity is a felony under federal law. Constitutionally, both the feds and the state can come after you for the same charge. If you get acquitted on the state charge, the federal government can still prosecute you for an identical violation of federal law.
At the same time, most marijuana violations are prosecuted by state government. There is some debate about the power of the federal government to regulate personal activities under its power to regulate “interstate commerce”. (At the time of the Marihuana Tax Act, constitutional law would not have permitted a flat prohibition of cannabis as an exercise of the federal government’s power to regulate “interstate commerce”.) A recent judgment from a federal district court in California concluded that the federal government has the constitutional power to prohibit the possession and cultivation of marijuana by individuals authorized to do so by state law. So, it appears that the feds can come after you for even a small-time operation.
Normally DEA does not involve itself in marijuana unless the quantities are great. I have heard that they normally do not get involved in operations below 100 plants, but again, they could get involved in a 1 plant operation. And remember that there is a federal mandatory minimum sentence at 50 plants. You will entangle yourself with federal law if you commit an offense on federal property (BLM land, a military base, a national forest, etc.) or in a federal jurisdiction (e.g. the District of Columbia).
The U.S. Department of Justice (of which DEA and the U.S. Attorneys Office are parts) has a policy called the “Petit Policy”. Under this policy, DOJ normally will not become involved in a matter that is being prosecuted by a state. Thus, if the state charges you with cultivation, DOJ policy is to keep its hands off. But this is only a “policy”, and DOJ can still decide to come after you.
And Finally, the NORML Site
Be careful with the state law guide on the NORML web page as there are a number of “little” errors. The problem is that the guide doesn’t really get into enough detail in some areas. The oversimplification might come back and bite you in the ass. Some things are just plain wrong, too. Anyway, it’s a good place to start or double-check your research, but I strongly recommend you look up the actual law and verify what the cutoffs, etc. are if you’re going to rely on them. I have found problems with information on the TN, NC, NV, and VA pages, for example.
I hope this information is helpful for everyone.
There are a few “safe harbors” (or really just “sort-of-safe harbors”) out there and if you are growing, and you’d be well-advised to take advantage.