Marijuana is legal in D.C.…isn’t it?

On March 5, 2014, the D.C. Council decriminalized the possession of up to an ounce of marijuana. A few months later, the voters of Washington, D.C. took another big step by passing Initiative 71, which completely legalized the small possession and cultivation of marijuana. Following the passage of this citizen initiative on February 26, 2015, it is legal to possess up to two ounces of marijuana and grow up to three marijuana plants in the District of Columbia.

The District of Columbia does not allow citizen initiatives to require the spending of city funds. Therefore, Initiative 71 could not regulate or legalize the sale of marijuana because doing so would require the use of city funds.

Not long after the passage of the initiative, Congress went against the residents’ clear desires and made it certain that the District will not be able to issue regulations any time soon. Congress reviews all of D.C.’s laws and controls D.C.’s budget. This past June, Congress attached a rider to the $1.1 trillion spending bill that prohibited D.C. from “enact[ing] any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance.” This rider remains in effect until 2017.

This means that, because the D.C. councilmember’s are paid by city funds, the council is not allowed to even discuss marijuana legalization or create any regulation or taxation system for the sale of marijuana until at least 2017. Therefore, it is still illegal for marijuana to be bought or sold in the District.

There are only three ways under District of Columbia law that someone can legally obtain marijuana. First, they can get it from someone as a “gift” without payment. Of course, this calls into question how the giver received the marijuana in the first place. Second, they can get a medical marijuana prescription from a doctor. Under the D.C. Department of Health Medical Marijuana Program, the doctor must make a formal recommendation that marijuana is medically necessary to diminish the side effects of a qualifying medical treatment or is medically necessary to treat a patient’s qualifying medical condition. The third way to legally obtain marijuana in the District is to grow it on your own plants. However, marijuana is difficult to grow and requires an extensive amount of work and very specific – and expensive – equipment. Cultivating marijuana is probably not feasible for the average casual marijuana user.

The Washington Post reported that this limbo created by the law has actually served to strengthen the marijuana “black market.” The ambiguity has opened up unique opportunities for dealers to test the lines between donations and sales. Dealers also now feel more comfortable advertising on websites such as Craigslist or giving prospective buyers “free samples” of their product in an effort to increase their business.

The Chief of Staff for Mayor Muriel Bowser, John Falcicchio, accurately blames Congress for the rise of the marijuana “black market” following the legalization of possession. In fact, the Washington Post quoted Falcicchio as saying: “In D.C. it shouldn’t be called the black market; it should be called the Harris market,” referring to Rep. Andy Harris (R-Md.) who spearheaded Congress’s budget rider that prohibited D.C. from regulating the sale or taxation of marijuana.

This prohibition has cost the District of Columbia a substantial amount of money. At the Joint Public Hearing on Marijuana Legalization and Regulation, the Director of Fiscal and Legislative Analysis at the Office of Revenue Analysis analyzed the prospective tax revenue if a 15% sales tax was imposed on marijuana and marijuana products. He testified that he expected the sales tax to bring in approximately $130 million dollars in tax revenue per year.

In the criminal law context, this legalization has had some effect. Since the legislation, prosecutions for marijuana possession have been non-existent and the number of arrests and convictions for marijuana related charges has greatly reduced. Further, the D.C. Council created legislation that permits the expungement, or sealing, of prior marijuana possession cases under D.C. Code § 16-803.02. Under this law, any person who has ever been arrested, charged, or convicted for marijuana possession in the District of Columbia can have their record sealed from the public by filing a motion with the court. You can learn more about expunging or sealing a criminal record in the District here.

While this legalization has a long way to go, D.C. has impressively held its ground by passing the marijuana legalization despite the vocal pushback from Congress. The hope is that this sweeping change in the view of marijuana throughout the country will encourage Congress to loosen their reins on D.C. and allow the Council to regulate and tax marijuana in a way that will benefit the criminal justice system, the residents, and the District