With cannabis decriminalization currently being debated at the federal level, it seems appropriate to discuss what decriminalizing cannabis in Utah could look like. While some of you may know that cannabis was first made federally illegal in America in 1937, and that in June 1971 President Richard Nixon declared a “war on drugs,” proclaiming drug abuse “public enemy number one” in America, some of you may not know that, between 1973 and 1978, over a dozen states decriminalized cannabis possession. Although the decriminalization movement would stall under President Reagan, beginning in 1996 with the legalization of medical cannabis in California, America began to see a reinvigoration around decriminalization. At present, more than half of the states and D.C. have decriminalized cannabis in some form. Utah is unfortunately not amongst the states that have enacted laws to remove or reduce the criminal penalties associated with low-level cannabis possession offenses. This then begs the question; how could cannabis decriminalization look in Utah? Should low-level cannabis offenders still face potential of jail time and heavy fines, or should those offenses be re-categorized as simple civil matters?
The Criminalization of Cannabis in America
For hundreds of years, colonists and then Americans cultivated and used cannabis for a variety of industrial and medicinal purposes. However, as America moved through the back half of the nineteenth century, a number of states began to pass poison control laws, some of which included cannabis. In 1906, Congress passed the Pure Food and Drug Act, which required cannabis and other drugs to be accurately labeled. After the passage of the Pure Food and Drug Act, a wave of states passed laws in the nineteen teens and 1920s that saw cannabis outlawed or otherwise restricted. Utah was among the first states to outlaw cannabis, which it did in 1915.
In 1937, the federal government enacted the Marihuana Tax Act, which effectively outlawed cannabis in America through the imposition of a federal excise tax on all sales of hemp. For the next several decades, the Federal Bureau of Narcotics, led by Harry J. Anslinger, would continue to vilify cannabis and persecute cannabis users. This assault on cannabis would seemingly culminate in 1970 with the passage of the Controlled Substances Act. Under the CSA, cannabis was assigned a Schedule I classification, meaning it was deemed to have a high potential for abuse and no accepted medical use. With the passage of the CSA, the U.S. government would continue its onslaught on cannabis and other drugs, spending more than one trillion dollars to fight the war on drugs in the approximately fifty years since Nixon declared America’s war on drugs. In 2022, it is estimated that the federal government will spend north of $40 billion to combat illegal drugs.
America Begins to Rethink the Criminalization of Cannabis
With the advent of the 1960s, America saw a shifting attitude towards cannabis. By the middle of the decade, a growing belief that cannabis use was both enjoyable and safe led to its widespread popularity among the country’s youth. This support for cannabis was sadly met with more arrests and harsher sentences for cannabis users. These arrests and convictions resulted in a significant outcry to modify or outright appeal the country’s cannabis sentencing laws. This type of public outcry led a number of states to decriminalize cannabis.
Oregon became the first state to decriminalize cannabis in 1973, reducing the penalty for possession of up to one ounce of cannabis to a $100 fine. In 1975, the Alaskan Supreme Court held that the Alaska Constitution’s right to privacy protected an adult’s ability to use and possess a small amount of cannabis in their home. In October 1977, the Senate Judiciary Committee voted to decriminalize up to an ounce of cannabis for personal use. By 1978, 13 states had passed some form of decriminalization. However, it would not be until 2001 that another state would move to decriminalize cannabis. This was largely due to the re-criminalization of cannabis that coincided with the rise of the cannabis paraphernalia market and the tough on crime stance that was a hallmark of the Reagan administration and its “Just Say No” campaign in the 1980s.
In 2001, Nevada became the first state to decriminalize cannabis since the 1970s. After Nevada, several U.S. cities (Seattle, Oakland, Denver, and San Francisco) enacted their own decriminalization measures. Between 2008 and 2020, 13 states, D.C., and the U.S. Virgin Islands all passed decriminalization laws. As decriminalization measures began to take hold again, states like Colorado and Washington began to legalize cannabis for adult-use, further moving away from the criminality of cannabis and towards a society that allows for the regulated use of cannabis that so many are now accustomed to.
As it stands today, 19 states (and D.C.) have enacted adult-use cannabis laws, while 39 states (and D.C.) have enacted medical cannabis laws. 27 states (and D.C.) have passed laws to decriminalize cannabis possession. This is an incredible accomplishment; however, there remain thousands of Americans that live in a state where cannabis remains completely illegal or where the penalties around illicit cannabis possession are overly harsh. These facts underscore the importance of passing continued reforms around cannabis, even if just to remove or reduce the criminal penalties associated with use and possession.
Not All Decriminalization Laws Are Created Equally
With more than half of U.S. states having passed cannabis decriminalization laws, it is important to understand that not all decriminalization laws are the same. For instance, some states, like Alaska, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, and Virginia, have completely removed the criminal penalties and fines around the simple possession of cannabis (usually one ounce or less). Other states, like Delaware, Hawaii, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, North Carolina, North Dakota, and Ohio, have at least removed the possibility of jail time for low-level possession offenses. In those states that have removed the possibility of jail time around simple possession, the maximum fines or other penalties that may be imposed can vary widely. For example, in North Dakota, possession of one-half ounce or less of cannabis is punishable by a $1,000 fine. Conversely, in Louisiana and several other similar states, possession for personal use (usually between a few grams and one ounce), the maximum fine is $100. There are other states like Hawaii that have made possession of three grams or less punishable by only a $130 fine. However, for possession of more than three grams, but less than one ounce, a person is facing a misdemeanor punishable by up to 30 days in jail and a $1,000 fine.
Certain states, whether through court opinion or statute, allow persons to possess greater amounts of cannabis in their homes. In Alaska, a person may possess in their home without the possibility of any kind of criminal penalty between one and four ounces of cannabis. In Massachusetts, a person may possess up to 10 ounces in their home, while in Connecticut a person may possess up to five ounces in their private residence. Some places have also included in their decriminalization laws sections regarding home cultivation allowances without criminal penalty (Alaska, California, Colorado, D.C., Illinois, New Mexico, New York, Oregon, Rhode Island, Vermont, and Virginia) and remuneration less transfers (California and Colorado). For those states that have decriminalized some form of homegrown cannabis, the general consensus seems to be to allow a person to cultivate up to six plants, three mature and three immature, at one time.
What Could Decriminalization Look Like in Utah?
As seen above, there a number of different ways in which states have chosen to decriminalize the use and possession of cannabis, which leads one to wonder how cannabis decriminalization might look Utah. Currently in Utah, possession of less than one ounce of cannabis carries with it the possibility of up to six months in jail and a $1,000 fine. Any conviction will also result in a suspension of one’s driver’s license for six months. There are no home grow provisions for medical cannabis patients, which means home cultivation is punishable in the same way as any other possession offense. To put this in perspective, if a medical patient were caught cultivating more than one ounce of cannabis, they would be subject to one year in jail and a $2,500 fine, while a patient caught cultivating more than one pound of cannabis would be subject to five years imprisonment and up to $5,000 fine.
Knowing that Utah is still among those states that has not yet opted to decriminalize cannabis, what are some things Utah could look to adopt from other states? First and foremost, if Utah is ever to enact decriminalization, it should undoubtedly remove the possibility of jail time for small time possession offenses. No one should be in jail or prison in Utah for possessing small amounts of cannabis for personal use. Jail sentences should be reserved for higher level traffickers.
Second, Utah should decriminalize possession of up to one ounce of cannabis or more, instead of limiting the legal possession amount to three grams like say a Hawaii has done. Limiting the legal possession limit to only a few grams will have a very small impact, if any, on the arrest and incarceration rates for cannabis in Utah.
Third, Utah might consider enacting decriminalization provisions that recognize the ability to possess more than one ounce inside a person’s home. As noted elsewhere, Alaska’s supreme court has long held that cannabis possession in one’s home is a protected privacy interest. Other states have recognized similar protections, giving persons the right to possess more cannabis in their home than in public. Utah’s lawmakers should consider offering the same type of protections.
Fourth, Utah should also consider reducing the penalties around public possession or consumption. While public possession or consumption is not something that Utahns may want to exactly promote, the harsh criminal penalties associated with a cannabis offense should arguably be lessened for those found possessing or consuming cannabis in public.
Finally, even if Utah as a state is not ready to enact broad decriminalization laws, then Utah’s larger cities and counties should consider adopting such reforms. Following the lead of other cities, Salt Lake City or another Utah city should move to enact its own decriminalization laws. The same could apply to Salt Lake County or any other county in the state could itself decide to adopt decriminalization. Short of enacting changes in the law, Utah cities and counties could issue statements or other edicts that would make cannabis arrests and prosecutions a lower priority for law enforcement and prosecutors.
Regardless of what path Utah, or its cities and counties, might take towards decriminalization, one thing is for certain; cannabis is not a crime, and those that use and possess the substance for personal use have no business being incarcerated and having their lives forever disrupted by an arrest and conviction.
