Decriminalization Versus Legalization of Marijuana

The Maryland Senate just passed a new law which would decriminalize the possession and use of small amounts of marijuana.  It may become law if the Governor signs it.  Does that mean marijuana will now be legal in Maryland?  If not, what the heck does decriminalization mean?  What is the practical effect of decriminalization?

Decriminalization is not legalization.  When you make something legal, you remove all restrictions on its use.  If the state made marijuana legal, then you could walk down the street smoking a joint in broad daylight.  There would be no legal repercussions of any sort connected with the act.

Decriminalization is different. Decriminalization is the act of taking something out of the criminal system.  The act (in this case, possession of marijuana) may still be prohibited.  It will still be illegal to walk down the street holding a joint.  However, the act is now punishable as a civil matter – not a criminal matter.

That means there will be no threat of jail time, and no possibility of being prosecuted in the criminal justice system.  You won’t have a criminal record if you are caught violating the law.  The punishment will most likely be a monetary fine.  You will get a citation for the violation, just like you would for a traffic ticket or a parking ticket.  You would have to pay the fine to the state, just like a traffic or parking ticket.  If you did not, further trouble will follow you.  Maybe the cops will put a boot on your bong?

Many of you may be asking a different question:  Isn’t the practical effect of decriminalization and legalization the same?  Getting caught with marijuana will now be a nuisance – not a serious threat to one’s liberty.  Therefore, won’t people be more inclined to do it?

That is the crux of the political debate going on right now.  I personally think it will depend on where they set the fines.  As an attorney, I do feel there are a lot of stupid crimes which really shouldn’t be punishable in the criminal justice system.  We clog up our courts because politicians like to say they took a tough stand on some issue.  They tend to make everything a crime, and it clogs up the system.

Perhaps potheads should just pay a fine and be done.  If you set the fine high enough, and you make it really painful to get caught, then you keep it from being treated as legal in a practical sense.

But if you set the fine too low, then you will make smoking pot just a nuisance.  It will just be an extra cost and many will be happy to pay it – just like speeding.  Our kids will feel free to engage in it if they want.  I think that would be a travesty of justice and something the state should avoid.  I truly hope they amend the law as written now to increase the fines.  If they do that, I don’t think you will see much of a practical effect.

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