They say that possession is nine-tenths of the law. However, in the case of marijuana, that may not be quite the case. Though marijuana has undergone a dramatic transition, it is still a Schedule I drug. According to the Drug Enforcement Agency (DEA), marijuana is defined as a drug that “has a high potential for abuse and has no currently accepted medical use.” The DEA oversees the listing of what drugs are considered illicit.
Included in this listing of illicit substances are heroin, LSD (lysergic acid diethylamide) and methamphetamine. Marijuana is considered a “controlled substance.” A controlled substance is any drug that is regulated by the federal government. It is, therefore “controlled,” and considered a harm to the public.
Emerging studies are challenging this definition, but things aren’t changing as quickly as some would like. Even as public opinion has come away from the days where marijuana was considered a menace, possessing marijuana could still get you in some real trouble.
Possession of Marijuana & Intent to Sell
In some areas of the United States, simply possessing marijuana is not only illegal but in the eyes of the law, it can mean that you intend on selling and distributing a controlled substance. According to the federal law 21 U.S. Code section 841, it is a serious crime to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense,” such a substance. Federal law further defines possession as the following: “Actual possession is the knowing, direct, and physical control over a thing.”
“Intent to Sell,” is an umbrella term that most legal experts explain as an individual knowing what a substance is, knowledge of its legal disposition, and knowledge of having said substance either on the premises or on their person. Also, there must be a viable amount that could be distributed.
There can only be a distribution charge if a substance is in possession. For example, if two friends plan on selling illicit substances to their friends on campus and will get the substance from a known dealer but the transaction never occurs, the friends cannot be charged with intent to sell – as there was no product to be sold.
However, even this can get a bit confusing when you add in conspiracy to distribute. Conspiracy to distribute drugs is when an individual hasn’t necessarily distributed or possesses an illegal drug, but has plans to sell, distribute, or possess said drug. In other words, the friends in the above example may not be guilty of possession or distribution of an illegal drug but may be charged instead with conspiracy.
Conspiracy to sell or distribute a controlled substance is governed by certain criteria. Federal law states that the term “conspiracy,” depends on a few factors: The length of time of the relationship between the parties involved, if a compensation method has been confirmed, whether trust has been established, if there is a standard method of conducting each transaction, the amount of drugs involved and finally, whether the drugs were purchased outright or if payment was promised later.
The laws operate this way to stop the incursion of long-standing drug operations or discourage the creation of new ones. Often drug cartels and even smaller outfits can be curtailed with this law in effect. Simply giving anyone a tip or speaking with someone about their drug distribution techniques can carry with it jail time.
Distribution of Drugs & Sentencing
According to the Congressional Research Service, possession with intent to sell has certain definitions as well as mandatory maximum sentences. Even a small amount of marijuana can engage a compulsory sentence. For example, federal law states that for even 2.5 grams and or less, a misdemeanor charge, along with 6 months of jail and/or a $1,500 fine.
Federal laws are quite clear on distribution and sentencing. Distribution, defined as the transfer of a controlled substance between individuals, also has compulsory minimum sentencing. For marijuana, the sentencing includes a jail sentence of not less than five years for 100 kilograms of possession.
If you give or sell marijuana to anyone under the age of 21 years, the penalties can double. The amount doesn’t have to be large – as little as 5 grams of marijuana could get you a charge of intent to sell to a minor. Of course, giving someone marijuana (any amount) near a school, playground or any other place where children are gathered can also garner hefty penalties and jail time.
However, laws regarding cannabis possession and intent to sell vary from state to state. Keep in mind, though, that federal law currently prohibits the use, possession or sale of cannabis; it is illegal to use on federal property. This includes national parks and forests.
So if you’re backpacking through a national park and decide to light one up, you may be hit with a litany of charges, regardless if the possession and distribution of marijuana is legal in your state. In some areas, like D.C., where the use of recreational marijuana is legal, employees working on Capitol Hill can risk their jobs if they partake in a bit of toking.
Things get even more confusing when you add in that anyone can give away marijuana there for free – they just can’t sell it. If you have marijuana and want to make a profit off it without running afoul of any laws, both federal and state, you have to attach something to the sale, say a t-shirt or hat while the weed is “free.”
In Alaska, you cannot use marijuana in most public places, though it is just fine in a privately-owned property where it is not prohibited. However, when it comes to possession and intent to sell, things aren’t so clear. Any adult aged 21 and up can possess, cultivate and give away up to six marijuana plants or up to one ounce or less without it being considered an illegal distribution or possibly intent to sell. If you’re caught getting compensation for more than one ounce, you could be charged and spend up to a year in jail.
If you’re in a state like California, possessing weed isn’t illegal. However, users should observe certain rules and regulations. For example, users can’t have more than 28.5 grams on their person or premises, and if they grow cannabis, they can only cultivate about six plants at a time. If you are a user in California and you want to send to a user in another legalized state, even if it is an amount lower than the 28.5-gram limit, you may be guilty of distribution.
In Pennsylvania, the penalties can be much harsher. Possession of 30 grams of marijuana or more can constitute an intent to distribute or sell. Minimum sentencing makes this a felony and punishable with up to three years in jail and a fine of up to $25,000.
Final Thoughts on ‘Intent to Sell’
You may think it’s impossible to determine whether there was intent to sell marijuana. However, federal law contains criteria designed to determine just what intent means. Intentions can be based on prior knowledge of the controlled substance, possession and a host of other factors.
Even in states where marijuana has been legalized, federal law reigns supreme. According to federal law, marijuana is a Schedule I drug. Marijuana is classified as a harmful substance with no medical value and is overseen by the Drug Enforcement Agency or DEA.
Due to this designation, users of both recreational and medicinal marijuana are in a quandary. On one hand, marijuana may, in fact, be legal in their given state, while on the other, federal law can still be imposed along with fines, fees and jail time.
Even as activists and lawmakers are pushing back on laws that give marijuana its classification, there are barriers to its legality. These barriers are slowly being struck down, but it’s those who consume marijuana for chronic pain, illness or simply for recreational uses that are often caught in the crossfire.
To keep yourself from getting caught up in the quagmire of legalities, there are a few things you can do. First, become acquainted with federal law. Even if you live in an area where public and private consumption is legal, there are often loopholes that will allow you to get into trouble. In addition to gaining an understanding of federal law, study the laws in your state regarding marijuana and cannabis-based products.
Knowing your rights on both levels can illuminate what you can and can’t do, and it may keep you from getting arrested and charged. Be aware that the laws regarding how much weed is intent to sell are constantly changing and evolving. What may be true for users one month could be different the next. As we move further into the public discussion that surrounds marijuana, changes come fast and may be abrupt.
You can also ensure that you sidestep jail time by refraining from sending marijuana to others. Marijuana may be a legal commodity in both your area and that of the recipient’s, but if your package is confiscated, federal law can dictate that you are liable legally. Being armed with knowledge will not only ensure your continued freedoms, but it will also alleviate undue stress and aggravation.