After repeated delays, Majority Leader Chuck Schumer (D-NY) and two close colleagues introduced the Cannabis Administration and Opportunity Act.
“Cannabis legalization has proven immensely successful at the state level, so it is time that Congress catches up with the rest of the country,” Schumer said in floor remarks Thursday. “I am proud to be the first Majority Leader ever to say that it is time to end the federal prohibition on cannabis, and this bill provides the best framework for updating our cannabis laws and reversing decades of harm inflicted by the war on drugs.” The bill also contains provisions that expunge some prior marijuana possession convictions and help ensure racial balance in the granting of marijuana commerce licenses.
Schumer did not announce next steps on the legislation or whether he will attempt to bring it up for further consideration on the Senate floor, though he said he hopes to get something done on marijuana “this year.”
Marijuana Laws in Georgia
This comprehensive bill faces an uncertain future. Schumer, who isn’t known for his ability to win friends and influence people, must convince at least ten reluctant Republicans to support the CAOA before it even comes to a vote. That’s the requirement if he convinces all fellow Democrats to support it, which is a pretty big “if.”
Marijuana laws in Georgia are much more certain. There’s about a zero percent chance that state lawmakers will legalize marijuana for recreational use. The Peachtree State doesn’t even have a viable medical marijuana law.
These laws are harsh. Possession of even a trace amount of marijuana is punishable by up to a year in jail and a $1,000 fine. Felony marijuana possession offenses have mandatory minimums. These sentences range from one year in prison for simple possession and five years if the offense occurred inside a drug-free zone, or within 1,000 feet of a school, park, or housing project. 1,000 feet is roughly three football fields. Almost every street corner in Athens is that close to a prohibited place.
Application of the law is a bit more uncertain. Several places in Greater Atlanta have decriminalized marijuana. They are:
- City of Atlanta: Possession of less than one ounce of marijuana in the city limits is punishable by a maximum $75 fine. Ordinance 17-O-1152 also reduces this offense to a violation, which means an infraction might not violate probation, parole, or other court supervision programs.
- Unincorporated Fulton County: This ordinance primarily affects the Fulton Industrial Park, which in the late 2010s, accounted for 30 percent of the POM (possession of marijuana) arrests in Fulton County. Basically, the same fine and decriminalization provisions apply. However, the unincorporated Fulton County ordinance also has a possible drug treatment requirement.
- South Fulton: First time POM in this newly created Fulton County city could cost a whopping $150. Mayor Pro Tem Mark Baker, who proposed the measure in the city that’s 90 percent black, cited the disproportionate number of black people who are charged with this crime in support of the ordinance, which passed 5-2.
Significantly, decriminalization only applies if the offense occurred in one of these areas. If officers see Eric smoke a joint in East Point and they don’t stop him until he crosses the Langford Parkway into Atlanta, state law still applies.
These legal uncertainties continue regarding certain procedural matters in POM arrests. More on that below.
Establishing Possession in Court
We’ve blogged about the three Ps of drug possession before. However, these arrests are so common and the points are so important that they bear repeating. Under Georgia law, POM and other illegal possession cases don’t hold up in court unless the state does the following:
- Produce the Substance in Court: For years, police officers have used the “I smelled marijuana” line to justify full vehicle searches. By the time of trial, no one knew for sure whether the officer smelled marijuana or not. Now, since hemp is legal, this argument might or might not sway a judge. Courts have issues conflicting opinions in this area.
- Prove It Was Illegal: Hemp, which is legal in Georgia and all other states, is physically indistinguishable from marijuana. These two substances look alike and smell alike, even when burned. That’s why the “ISM” line might or might not indicate criminal activity. In fact, only an expensive THC content test conclusively proves if a substance was THC or marijuana.
- Establish Possession: In criminal court, proximity isn’t enough to establish possession. Prosecutors must also prove knowledge and control. These elements are especially difficult to prove if the defendant was in a crowded room or vehicle at the time of the arrest.
Some informal matters apply as well. Since POM cases have a lot of moving parts, and a majority of people favor some form of marijuana legalization, many elected county prosecutors hesitate to prosecute these matters in court. So, if any defense could possibly apply, a Marietta criminal defense attorney has a much easier time obtaining pretrial diversion or another outcome that doesn’t stain the defendant’s permanent record.
Drug Possession Expungement and Sealing
Georgia’s harsh marijuana laws were once the nationwide norm. Additionally, on top of mandatory minimum prison sentences, most states aggressively prosecuted these offenses, during the heyday of the War on Drugs.
So, the criminal conviction relief provisions in the CAOA are even mor important to many people than the marijuana legalization provisions. Drug convictions are big, black marks on permanent records that never fade. Even decades after they paid their debts to society, former drug offenders are the target of police investigations. They also have issues finding jobs and housing.
This relief is already available locally. In 2021, Georgia lawmakers passed a sweeping record restriction (record sealing) bill. Sealing a criminal record is a little like burying a treasure chest. You must know where it’s buried to uncover the treasure, and only a few groups, mostly law enforcement and judicial departments, know where X marks the spot.
Now, former defendants can restrict up to two misdemeanor convictions. They may also restrict one felony conviction, if they receive an administrative pardon. The law excludes certain offenses, mostly sex crimes and extremely violent crimes.
There’s a difference between an administrative pardon and an executive pardon. An executive pardon erases all traces of the matter, in both judicial and law enforcement records.
Contrary to popular myth, executive pardon is not a last-ditch long shot that isn’t worth trying. Statistically, most governors and presidents grant about 10 percent of the pardon applications they receive. That’s not a big number, but it is a significant one. The percentage is even higher if the applicant completed his/her sentence more than ten years ago, the request jives with the governor’s political agenda, and a Marietta criminal defense attorney properly presents the request.
Marijuana laws and procedures are changing. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.