With the noted exception of the current Attorney General, there is a growing acceptance of legalize use of marijuana in the United States. Thirty of the fifty states have legalized marijuana for either medical and/or recreational use. As the laws with regards to marijuana use continue to change state by state, the states which have legalized medical and/or recreational marijuana must navigate the conflict between their state law and Federal law which continues to classify marijuana as a prohibited Schedule 1 narcotic – a “harmful substance of no known medical benefit.”
The classification of marijuana as a schedule 1 drug is antiquated and patently false. However, perception and laws are hard to change. Change usually begins at a grass roots level. Within Pennsylvania, several cities have started to pass local ordinances that have decriminalized marijuana. Philadelphia, Pittsburgh, Harrisburg, Allentown, York, and, most recently, Bethlehem have all passed local ordinances essentially reducing the punishment for possession of small amounts of marijuana for personal use, typically 30 grams or less, from a crime to a summary offense subject to a fine.
These local ordinances create a perceived conflict with Pennsylvania State laws. Under Pennsylvania’s Controlled Substance, Drug Device and Cosmetic Act (“CSA”), 35 P.S. §780-113 (a)(16), no person may knowingly possess a controlled substance without a lawful prescription from a doctor. Under the CSA, marijuana is also classified a Schedule 1 controlled substance. Pennsylvania’s penalty for possession of 30 grams or less of flower or 8 grams or less of hashish is a misdemeanor punishable by 30 days in jail and/or a $500 fine. See 35 P.S. §780-113 (a)(31)(i). Possession of more than 30 grams of flower or more than 8 grams of hashish is a misdemeanor with a maximum penalty of 6-12 months incarceration and a $5,000 fine.
So which law applies and how severe can you be punished for possession of a small amount marijuana in theses cities that have decriminalized marijuana. Typically, when there is a conflict between state law and local ordinances, state law preempts the local ordinance. Some local law enforcement authority have argued the CSA preempts all of the local ordinances as they are attempts to alter the penalties under the CSA.
In Holt’s Cigar Co. v. City of Philadelphia, 608 Pa. 146 (2011), the Pennsylvania Supreme Court rejected the argument that the Controlled Substance Act prohibits local regulation in order to create uniformity in the regulation of controlled substances. In Holt’s Cigar, the Supreme Court held that the Act does not prohibit local regulations of controlled substances unless there is an “irreconcilable conflict” between the CSA and the local regulation. The proper standard for determining whether the local ordinances “irreconcilably conflicts” with the Controlled Substances Act was stated by the Supreme Court in Holt’s Cigar.
[I]t has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.
Holt’s Cigar, 608 Pa. at 154. (emphasis added).
The Holt’s Cigar decision makes it clear that local laws with a different penalty do not create an irreconcilable conflict, as long as the local law does not permit what the Act forbids or forbid what the Act permits. The Supreme Court stated that the the nature or severity of the penalties imposed is not determinative and does not eliminate the conflict arising from the discrepancy with respect to mens rea for a particular course of proscribed conduct.” Id.at 165 (emphasis added).
While Holt’s Cigar decision provides some clarity as to whether local municipalities may enact ordinances decriminalizing marijuana, person may still be punished under state laws. Usually, it will depend on the law enforcement authority that arrests and prosecutes the individual. If you are arrested by a state trooper as opposed to the local municipal police, there is a good chance you will be charged with a violation of state law. It will then be up to the local courts and prosecutors on how to proceed with charges and punishment
An interesting enforcement scenario exists in the city of Bethlehem. On June 26, 2018, the Mayor of Bethlehem signed into law Bill No. 16-2018, creating a summary offense for possession of up to 30 grams of marijuana (or eight grams of hashish), possession of marijuana paraphernalia and personal use of marijuana. Under the new law, there is a fine of $25 for a first offense, $50 for a second offense, $100 for a third offense, and $150 fourth offenses or eight hours of community service.
The problem arises with enforcement. The City of Bethlehem is divided between two counties, Lehigh and Northampton. The District Attorney of Lehigh County maintains the position that the CSA preempts local ordinance despite the fact that both Allentown and now Bethlehem – Lehigh County’s largest cities – have decriminalized possession of under 30 grams of marijuana. The District Attorney of Northampton County maintains the opposite position and will enforce the local ordinances. So it is possible you could be punished differently depending on where you are caught in Bethlehem with marijuana.