As the cannabis legalization movement has made progress nationwide, putting an end to War on Drugs era policies in many states, there has been plenty of confusion surrounding legalization vs. decriminalization. While you may have heard both terms have been used interchangeably in the past, these terms describe two very different states of legality, so it’s essential to understand the difference and whether you live in a state that has decriminalized or legalized cannabis.
To clarify the difference between legalization and decriminalization, we’ve created this handy guide, which defines each term and traces the history of drug policy as it relates to cannabis in the U.S.
Clarifying the Difference Between Decriminalization and Legalization
Decriminalization and legalization are not the same — even if you’ve heard the word interchangeably. While both represent a step toward reform and a break with the War on Drugs policies of yesteryear, there is a significant, nuanced difference between the two.
Decriminalization means that the law reduces criminal penalties for or removes criminal sanctions for the possession of small amounts of cannabis. In areas where decriminalized drugs are a reality, having cannabis is still considered drug possession, but the consequences are lesser penalties such as a civil fine or rehabilitation. To be clear, cannabis is still considered an illegal drug in decriminalized jurisdictions. However, the consequences of being caught with it are significantly reduced, or state law removes penalties altogether.
Legalization, on the other hand, involves removing criminal sanctions and penalties against cannabis possession entirely. It’s usually accompanied by permission to set up a regulated industry to cultivate, manufacture and distribute cannabis products. In a legalized jurisdiction, drug arrests plummet. You won’t be ticketed or face other punishment for consuming or possessing cannabis, so long as you follow the state laws regarding age, place and amount. In a legalized jurisdiction, cannabis is considered an agricultural product or manufactured good rather than an illegal drug.
The chart below provides a general overview of the attributes of decriminalization and legalization. However, it’s important to remember that these attributes vary depending on the jurisdiction and the details of the specific policies.
| Decriminalization | Legalization | |
| Made fully legal | No | Yes |
| Removes criminal penalties for personal use or possession | Yes | Yes |
| Establishes a regulated market | No | Yes |
| Provides legal protections for individuals | Yes | Yes |
| Regulates advertising and packaging | No | Yes |
| Generates tax revenue | No | Yes |
| Promotes social equity programs | No | Yes |
Understanding the Current Climate Around Decriminalization and Legalization
There’s been a notable shift in public opinion and attitudes surrounding cannabis decriminalization and legalization in the United States. National survey to national survey solidifies that the legal status of cannabis is of concern to Americans from coast to coast. And it’s no longer an issue popular among voters of a certain age. Drug reform is particularly popular among young people, but growing numbers of Gen X and boomers support decriminalization, too. Today, 68 percent of the U.S. public support adult-use cannabis legalization, a vast improvement from the Reefer Madness era when the majority supported prohibition.
Cannabis has been federally illegal since 1937 and further classified as a Schedule I substance under The Controlled Substances Act, alongside other drugs like heroin and LSD, since 1970. Schedule I substances can also be described as those illegal drugs with “no recognized medical use” — even though medical marijuana has been legal for decades in the U.S. — and present a high potential for substance abuse. This scheduling system has laid the groundwork for the modern-day War on Drugs, though there are signs that drug policies are changing for the better.
Now, 40 states, plus the District of Columbia (DC), have enacted laws allowing for the medical use of cannabis. Additionally, 23 states plus DC have legalized recreational cannabis for adults aged 21 and older. This shift reflects the changing attitude and potential acceptance of the medicinal and recreational benefits of the plant.
In a global context, several countries outside the U.S. have also implemented policies legalizing or decriminalizing possession of cannabis. In 2013, Uruguay became the first country to federally legalize cannabis for recreational use, followed by Canada in 2018. Countries like Portugal, the Netherlands, Spain and Switzerland have decriminalized cannabis possession recently, while others, such as Germany and New Zealand, have introduced medical programs.
While the global momentum toward decriminalization and legalization indicates a shift in society’s approach to cannabis regulation, much work must be done. Although cannabis is no longer automatically thought of as a dangerous illegal drug, misconceptions and stigma remain; in many cases, those false beliefs still influence public policy.
Pros and Cons of Decriminalization
Decriminalization is a positive step — and often the first one — to changing a jurisdiction’s approach to any type of drug. In the case of cannabis, decriminalization is a widely-supported foot in the door to legalization, and the policy offers its own set of pros and cons.
Pros of Decriminalization
- Reduces strain on the legal system: Decriminalizing a drug alleviates burdens on police, court systems and correction facilities by eliminating jail time. Removing criminal penalties allows law enforcement to focus energy and resources on more serious crimes while reducing the number of drug possession cases working their way through the legal system. Under decriminalization, the government regards cannabis possession more like a traffic ticket than anything else.
Decreasing rates of incarceration: It’s no secret that the U.S. prison system is overpopulated. Decriminalization reduces the number of people incarcerated for non-violent drug charges, improving civil liberties, reducing overcrowding and reducing the taxpayer expense required to incarcerate those convicted of nonviolent drug offenses. - Potentially improving social equity: The War on Drugs has had a majorly disproportionate effect on marginalized communities. While decriminalization is not the end-all answer to these inequities, it provides a stepping stone toward a fairer justice system and a cannabis industry that provides opportunities for those most impacted by War on Drugs era enforcement.
Encouraging research and medical advancements: Cannabis possession is still illegal under federal law, which has limited scientific research for decades. Decriminalization facilitates more research by making it easier for scientists to conduct studies. Researchers can therefore engage in this important work without worrying that they may face criminal penalties.
Cons of Decriminalization
- Questionable product quality: The regulatory oversight and quality measures that exist in a legalized market do not exist under decriminalization. Legacy operators remain the primary source of cannabis in decriminalized markets, not licensed dispensaries, resulting in uncertainty regarding the safety and quality of products available.
- Lack of revenue: In many legalized areas, a percentage of cannabis taxes are allocated back into the local community. Because decriminalization does not establish a framework for the regulation and taxation of cannabis sales, there may be missed opportunities for generating revenue that could be invested in the public good.
- Challenges in enforcement: Decriminalizing cannabis possession and consumption may present challenges in adequately enforcing issues related to public use, impaired driving or age limits. The lack of a more comprehensive regulatory framework often means a lack of clarity and consistency in legal consequences.
Pros and Cons of Legalization
Cannabis legalization is not just a blanket term — each state that has legalized cannabis has developed the law to govern the newly legalized industry in a way that works best for their state. The following pros and cons highlight the benefits and challenges associated with the legalization of cannabis.
Pros of Legalization
- Generating tax revenue: Legalizing cannabis allows the government to set tax systems in place and gain sustainable revenue. This newfound tax revenue may be directed toward public services like the school system or rehabilitation centers. In some states, some tax revenue is set aside to help those disproportionately affected by the War on Drugs.
- Creating a regulated and safe market: With legalization comes much more than just the ability to possess cannabis. It creates a regulatory framework for quality control, product safety and responsible consumption. Consumers can access verified and tested products with far less risk in a legalized market.
Potentially undermining illegal trade: Cannabis legalization will potentially shift consumers away from outside sources by offering a safe and legal alternative. However, the degree to which it does so depends on the broader regulatory framework, including considerations like availability of licensed products and the cost of taxes. - Allowing for more research: Under federal prohibition, there is very little wiggle room regarding scientific research on cannabis. Legalizing cannabis expands research by leaps and bounds, allowing us to understand how the plant works and whether it offers certain medicinal benefits.
Cons of Legalization
- Potential over-commercialization: A legalized market may lead to concerns about excessive advertising and promotion of cannabis.
- Public health concerns: A common concern surrounding the increased accessibility of cannabis products is a heightened likelihood of overconsumption.
- Road safety and impaired driving: The legalization of cannabis also leads to concerns over the potential impact on road safety. Concerns regarding impaired driving and lack of reliable testing methods for a person under the influence remain challenging flashpoints in legal cannabis markets. We’re here to remind you: Never drive after consuming cannabis.
How Do Decriminalization and Legalization Policies Impact the Cannabis Community?
Decriminalization and legalization policies have a profound impact on every person in the cannabis community. Changes in the legal framework not only influence punishments for cannabis use but impact various aspects of access, including medicinal use and public perception.
For most cannabis consumers, decriminalization means they can possess cannabis with less concern about consequences, while legalization establishes a regulated market and creates licensed cultivators, manufacturers and operators to supply the market. These policy changes not only make it less likely for individuals to face criminal charges but expand safe access options. Under a legal, regulated market, medical cannabis patients have access to quality-controlled medicine tailored to their individual needs, while adult-use consumers can be sure they’re purchasing high-quality, safe and tested products.
Moreover, legalization and decriminalization mean more opportunities for social justice, employment and economic growth. Legalizing cannabis allows for licensed cultivation, manufacturing, retail businesses, and more to emerge and operate within the market, stimulating growth and development for entrepreneurs and the local economy. Further, with most legalization initiatives implementing social equity efforts, these policies also work to rectify historical injustices. While there is no one-size-fits-all approach to legalizing with social equity in mind, several states are including such programs in their approach.
Legal Cannabis Is Changing Everything
In the evolving landscape of cannabis, it’s crucial for every person invested in a greener future to stay informed and educated about the status of their community. Phenotopia Dispensary offers a variety of resources and opportunities to learn more about the plant, its effects and responsible consumption practices. By engaging in ongoing education and conversation, you can navigate cannabis in a way that aligns with the law and your needs and values.
