Cannabis Decriminalization vs. Legalization

red leaf

On November 3rd, South Dakota became the 15th state to legalize cannabis for recreational use. South Dakota made history by going from the complete prohibition to the total legalization of cannabis. 

Currently, 15 states and the District of Columbia have fully legalized cannabis and an additional 16 states have decriminalized it. But, what is the difference between legalization and decriminalization? Is one preferable to the other? Is decriminalization dangerous? Let’s look at what constitutes each and find out.


Understanding the difference between cannabis decriminalization and legalization is crucial as President elect Joe Biden and Vice President elect, Kamala Harris, stated their support for decriminalization according to New Soothing SkincareMarijuana Moment. 

Decriminalization usually precedes legalization. A state often decriminalizes cannabis for the intent of keeping it illegal while eliminating jail time as a penalty. Instead, the penalty for possession is often a fine. This is confusing as possession and use of cannabis is still prohibited by law. However, perpetrators are virtually protected from criminal prosecution under decriminalization. 

If caught with a small amount of cannabis, decriminalized states treat this as a minor traffic violation

Conversely, selling or possessing large quantities of cannabis is still against the law and therefore liable to prosecution. The latter is considered possession with intent to distribute — a completely different offense than possession in small quantities. 

A study on public health concerns surrounding legalization suggested that many supported it in an effort to reduce prison populations and crime rates. However, this same study also shows that legalization correlated with an increase in homicide rates and hate crimes. Subsequently, cannabis’ legalization caused an increase in demand, leading to increased availability and lower costs. Decriminalization may be a good alternative to legalization by decreasing prison populations while possibly avoiding some of the negative correlations mentioned. 

However, while most  don’t consider cannabis decriminalization dangerous, there’s concern over underage usage. 

A study from the National Institutes of Health (NIH) reports that cannabis arrests involving underage youth decreased in legal states. But these arrest rates still contribute to a large amount of cannabis arrests.

In legal states, arrests among adults decreased more than those among youths. Implying that decriminalization might lower youth arrests more than legalization, the study states, “Decriminalizing marijuana and reducing penalties for underage youth would help reduce marijuana arrests.” 



Legalization changes the status of cannabis from illegal to legal. However, this process varies from state to state. In 15 states, cannabis is legal for medicinal and recreational use for adults age 21 and older.

In another 20 states, cannabis is completely legal for medical use. 13 of these 20 states have decriminalized cannabis. Again, this can be a bit confusing. According to the Marijuana Policy Project (MPP), medical cannabis is legal in these states, and for the sake of understanding, possessing small amounts of it for recreational use is a fineable offense. 

Cannabis is legal for medicinal purposes in additional 13 states, but there is a limit on the amount of THC that can be used. Two of these 13 states — North Carolina and Virginia — have decriminalized cannabis. 

This leaves only two states, Idaho and Nebraska, where no legalization legislation has passed. However, Nebraska has decriminalized cannabis. Thus, Idaho is the only state which completely prohibits any possession or use of cannabis. 

The Legality of THC

The cannabis leaf with the chemical formula for THC.

THC has become a legal tipping point for some states. Source: Aleksandr Kravtsov/Getty Images

Just as we have seen states overturn federal law prohibiting the use of CBD, we see the same with THC. It should be noted that hemp is completely legal to use and grow in the U.S. Although CBD and THC are derivatives of hemp, the laws on how much THC concentration is legal remain murky.

According to Vape Fuse, the U.S. Food and Drug Administration (FDA) has determined that products with a concentration of under .3% THC are legal for “educational and academic purposes.”

In essence, the entire process of legalization begins with decriminalization and progresses towards legalization in an effort to circumvent federal policy. THC and high THC concentration products are simply going through this journey more slowly than CBD products. 

Ultimately, it is likely THC will follow the same path to legalization that CBD has.



By Thomas O’Connor


Kamala Harris and Jerry Nadler Introduce Federal Decriminalization Bill

Emerald contributor since September 2020


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