Is pot legal now? Why marijuana is both legal and illegal in US, despite Biden pardons.

President Joe Biden’s pardon of certain marijuana-related crimes made headlines Friday – but a messy patchwork of state legislation means the vast majority of convictions remain unchanged.

Biden's announcement on Friday expands on an earlier proclamation in October 2022, which pardoned people convicted of simple possession under federal law. It adds to the crimes people can be pardoned for, including attempted simple possession and use on federal lands and in Washington, D.C. But it does not apply to state-level marijuana convictions.

The president has called on governors to follow his lead and issue pardons for people convicted of similar state court offenses.

"Just as no one should be in a federal prison solely due to the use or possession of marijuana, no one should be in a local jail or state prison for that reason, either," he said.

Experts say the pardon's reach is limited, because it does not apply to people convicted on state charges who make up the bulk of these drug cases.

The result: A confusing patchwork of laws continue to blanket the nation.

Is marijuana legal where you live? It's always confusing.

Technically, pot is illegal at the federal level everywhere, even though Biden is moving to stop federal consequences for possession.

Marijuana remains a Schedule I drug by the U.S. Drug Enforcement Administration, meaning it is considered among the highest potential for abuse along with other drugs like heroin, LSD and ecstasy.

The DEA is currently considering a recommendation by Biden's Health and Human Services Department to reclassify marijuana as a Schedule III drug.

So with the federal government stepping back from marijuana enforcement, it's up to the states how lenient or strict to be. That isn't always a simple answer.

In cases where the state stops short of recreational legalization, people can face an array of consequences that depend on their personal circumstances, how much pot they are found with and the type of cannabis they have.

But remember, even in the most clear cases — where states fully legalize marijuana possession — the state law is technically mismatched with federal law.

The result of all these confusing laws has a real impact on thousands of Americans.

The National Organization for the Reform of Marijuana Laws estimated police made more than 350,000 arrests for marijuana-related charges in 2020 – a 36% decrease from 2019, and the lowest tally recorded since the early 1990s. The advocacy group attributed the decline to reformed legislation across states.

Despite the decline, drug arrests continue to disproportionately affect people of color. The Baker Institute said Black Americans accounted for 38.8% of marijuana possession arrests in 2020 despite comprising 13.6% of the U.S. population and using marijuana at the same rate as white Americans, according to the National Survey on Drug Use and Health.

According to the American Civil Liberties Union, of the 8.2 million marijuana arrests between 2001 and 2010, 88% were for just possessing marijuana.

Where is marijuana illegal? What kind of laws do states have?

The federal government is joined by a handful of states in a complete prohibition on marijuana, including South Carolina, Idaho, Kansas and Nebraska. Eighteen others have legalized medical use, while about half of the country also allows recreational use.

According to the Council of State Governments, states have taken four main approaches to marijuana policy: full criminalization, legalization of medical marijuana, recreational decriminalization and recreational legalization. 

Decriminalization entails removing criminal sanctions from possession and use but still classifying the drug as illegal, meaning the punishment is reduced from prison time to paying a civil fine or attending treatment.

Citing data from the Federal Bureau of Investigation, NORML found marijuana-related arrests were least likely in the West, where most states have legalized possession, and most likely in the northeast, which accounted for about half of all drug arrests. But the group expected that to change, as several states in the region have moved toward legalization.

Marijuana is the most commonly used drug that is illegal on the federal level, according to the Centers for Disease Control and Prevention, as roughly 18% of Americans used it at least once in 2019.

Some states have confusing marijuana laws

Legislation around decriminalizing marijuana has been in tumult over the last few years. While some states have taken a hard stance for or against legalization, others grapple with how (and if) to reform marijuana laws, leaving millions of Americans under a confusing legal framework.

DISA Global Solutions, a drug testing company, said Texas, Wisconsin, Georgia and Kentucky have mixed legislation, legalizing certain products for medicinal use like CBD oil while keeping the majority as criminal. Other states allow for limited use of marijuana or for certain medical conditions.

In a recent case in North Carolina, confusing regulations muddled the arrests of two people, including a woman who allegedly fought with officers and was punched repeatedly, and later had charges dropped.

They were smoking a hemp product – THCA – that is legal in the state but smells like marijuana when smoked. The similarities make it hard for officers to tell whether the cigarette someone is smoking is legal THCA or illegal marijuana, NPR reported. In that case in Charlotte, Anthony Lee and Christina Pierre tried to tell officers they purchased the THCA legally, but were arrested anyway, Pierre's attorney said.

Adding to the confusion, several states have legalized medicinal use of marijuana while recreational use can still trigger prosecution and penalties, up to jail time. While recreational use is legal in small amounts in nearly half of states and D.C., medicinal use is legal in at least 38 states as of this year.

Last year, five states had marijuana legalization measures on the ballot. Missouri and Maryland voted to legalize recreational use, while Arkansas, North Dakota and South Dakota voted against full recreational use. 

Most permissive states for marijuana

Some states are considered among the most permissive for marijuana use. California law allows possession for recreational use of up to 1 ounce of marijuana, six plants, and 8 grams of hash and concentrates, according to the Council of State Governments. Minors found with up to 28.5 grams can receive an infraction with no fine or prison time.

Illinois, which borders Indiana where use is criminalized, is also among the most permissive for marijuana possession, allowing up to 30 grams, the council said. Owning up to five plants for recreational use is considered a civil violation punishable by up to $200 in fines.

Other states with high permissibility include Oregon, Colorado and Nevada.

In all, nearly half of U.S. states and D.C. have legalized small amounts of marijuana for recreational use, while polling shows about 70% of Americans support legalization in 2023.

WHERE IS WEED LEGAL?See the states that allow recreational or medicinal use

Contributing: Jeanine Santucci