Marijuana decriminalization is even taking off in some municipalities where state law is quite strict in its treatment of cannabis possession. Pictured: A marijuana plant is seen at a fair showcasing products for medicinal use in Bogota, Colombia, on December 22, 2015. (Guillermo Legaria, AFP/Getty Images file)

Across America, efforts to decriminalize marijuana are pitting cities vs. states

Local ordinances to decriminalize weed are catching hold, but not all are successful as their home states attempt to enforce far stricter laws

A lot of attention is being focused on the states preparing to vote on marijuana legalization in the November 8 elections. But there’s another, less high-profile political movement underway, as more cities act in defiance of their home state governments and work to decriminalize cannabis possession and lessen penalties.

The trend has been taking place all over the country for several years now. Back in 2008, residents of Fayetteville, Ark., following a similar initiative in nearby Eureka Springs two years earlier, voted to have its police and local prosecutors treat adult marijuana possession offenses as “low priority.”

And marijuana decriminalization is even taking off in some municipalities where state law is quite strict in its treatment of cannabis possession.

Officials in Tennessee’s two largest cities, Nashville and Memphis, recently voted in favor of civil penalties for adults found possessing small amounts of cannabis. Those ordinances were criticized by Tennessee Gov. Bill Haslam.

I’m not the expert,” he told The Commercial Appeal in August. “But I just don’t think it’s a helpful step for our society given the struggles we have right now with substance abuse.”

There is also a cannabis decriminalization movement underway in Norfolk, Va.
“If these cases were no longer made a priority by the police, that would free up both police and prosecutorial manpower to go after some of the larger crimes in our community,” S.W. Dawson, a Norfolk defense attorney, said in an interview with WAVY-TV.

There’s an economic argument for decriminalization, as well. Cannabis activists in Philadelphia say that city has saved $9 million in public safety costs in the two years since it decriminalized possession of small amounts of marijuana.

But it’s not all smooth sailing; some of these city decriminalization movements have run up against strong political opposition from state officials.

In 2015, voters in Wichita, Kan. voted strongly in favor of a measure to fine first-time adult offenders $50, compared to the state penalty of six months in jail and up to $1,000 in fines. But this past January the Kansas Supreme Court struck down Wichita’s decriminalization law on a technicality.

At the time Kansas Attorney General Derek Schmidt noted the ruling brought up constitutional questions about whether a city has the authority to enact such an ordinance, and said he believed current state law pre-empts cities from acting in that manner.

“Perhaps they (state lawmakers) either want to fix state law or acknowledge that there’s a gap in it,” Schmidt said, according to a Wichita Eagle report.

Tensions between cities and states when it comes to marijuana laws are not uncommon, said Mason Tvert, director of communications for advocacy group Marijuana Policy Project. He noted most law enforcement issues are ultimately handled at a local level.

“Localities tend to determine what their priorities should be,” he said during a phone interview with The Cannabist. “Sometimes the question is whether it is done legislatively, by a council, or whether it’s being done as a matter of executive policy. For example, if a mayor were to direct the police department to spend less time on citations for marijuana, because there’s something else that he wants to see dealt with, then you might see that.”

But Tvert added that there’s a difference between decriminalization and having a city’s law enforcement look the other way regarding potential cannabis offenses.

“The mere presence of a law has an effect, whether it’s being enforced or not,” he said. “So there are a lot of people that choose not to consume marijuana because they don’t want to get in trouble. By having the law, by having that possibility that you could face arrest or other punishments, deters people from using marijuana and could result in them choosing to use other substances, particularly alcohol.”

Disputes between states and the federal government over marijuana legalization and other issues have a long history. But experts say municipalities play a weak hand when it comes to confronting state laws.

“Localities are in a trickier position because they aren’t quite as independent from their states as the states are from the federal government,” said Robert Mikos, a professor at the Vanderbilt University Law School, who has written and lectured extensively on a state’s constitutional authority to legalize marijuana.

“And probably this depends on whether or not the state is what’s known as a ‘home rule’ state; that’s where localities have relatively more power,” he said during a phone interview with The Cannabist. “But even in those states, localities are typically considered creatures of state government. And you wouldn’t say that about state government; no one would ever say state governments are creatures of federal government.”

Mikos said most states have the potential to bring municipal governments to heel by threatening to cut off essential funding or through other sanctions, but that the issue of cannabis decriminalization is still a legal gray area.

“By either wiping those local prohibitions off the books or downgrading them to civil offenses rather than criminal offenses, they’re saying, ‘We’re no longer going to punish this activity as a crime,’ ” he noted, “but what impact that has on the enforcement of state prohibition is still less clear.”

And there’s also the issue of whether a state can actually ensure that local law enforcement is enforcing state regulations. It’s a tension you sometimes see, Mikos said, in big cities with urban cultures that stand in contrast to the rest of the state.

“There’s a big difference between New York City and Albany,” he said. “Nashville is much more liberal than the rest of Tennessee, for example.”

But Mikos notes that even New York City, with its liberal reputation, has been much more aggressive lately in making arrests for marijuana possession; with its controversial stop-and-frisk policy that sometimes uses marijuana as a pretext to search someone in an effort to find evidence of other crimes.

And given the momentum of marijuana legalization across the country, often in defiance of federal law, Mikos said he believes cities and states should try to learn some lessons from decriminalization.

“What actually changes?” he asked. “Do arrest rates go down? Do racial disparities go down? There’s an opportunity to test arguments on both sides of the drug policy debate, to learn from some of these (decriminalization) experiments.”