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Legalization Vs. Decriminalization: It’s The Difference That Counts

By Douglas Capraro

Legalization and decriminalization are two words that are often used interchangeably. However, each one has very different implications, especially in terms of US drug policy.

Over the past ten years, the US has passed ground breaking legislation for both the legalization and decriminalization of marijuana in various states. Therefore, mixing up these words can not only get you in trouble depending on what state you are in, but it also belies the intricacies and benefits that both types of legislation can offer us. As policymakers continue to consider the expansion of both legalization and decriminalization in the US, it is imperative to know the difference between the two and how they effect our freedom as individuals in this country.


Legalization, put quite simply, is the authorization of something that was previously prohibited. Therefore, if a state legalizes marijuana, there is no penalty for using this drug besides for smoking in public areas or other similar restrictions. This may sound like an obvious point, but it is an all-too-important distinction that demands clarification.

When some people talk about US drug policy reform, they usually associate any legislation that softens stiff charges against drug users with legalization. Although legalization is indeed a reality in some states throughout the US, they are most often referring to decriminalization. Decriminalization is similar but does not qualify as legalization, since it only eliminates criminal penalties for drug law violations. This is not unlike a lesson many of us were taught in geometry class, that a square is a rectangle but a rectangle is not a square. However, we’ll take a more in-depth look at decriminalization a little later on.

As it stands today, there are four US states that have legalized the use of both recreational and medical marijuana, Alaska, Colorado, Oregon, and Washington. The District of Columbia has also legalized marijuana, but it is still unlawful to commercially sell marijuana for recreational use. In addition, there are 18 other states that have legalized marijuana for medical use.

Compared to the way that marijuana has been demonized for decades leading up to and following President Richard Nixon’s declaration of an official War on Drugs, the recent push for legalization in many states around the country is unprecedented. However, this is only the beginning.

Already, there are many states that people believe will be legalizing marijuana in the not-to-distant future. One state that is currently on the ballot for legalization in 2016 is Nevada. Also, a handful of states such as Maine, Massachusetts, and Arizona have had such a groundswell of support from pro-pot advocates that legalization looks imminent.


Decriminalization is where most people get confused, though it is essentially an easy concept to understand. The distinction between decriminalization and legalization is that decriminalization does not give the green light for people to openly sell or use drugs. Like I said earlier, decriminalization simply eliminates criminal penalties for drug law violations. Therefore, a person who is caught using a drug that has been decriminalized is still penalized, but they are not treated as a criminal outright.

On the other hand, penalties for drug possession have different severities based on the state or country that have decriminalized them. In New York, for instance, possession of most small amounts of marijuana are considered a misdemeanor while quantities of 25g or less hold no penalty at all. However, possession of more than 8oz or the sale of 25g is a felony.

Decriminalization, in this case, deters low-level drug offenders from being put into jail and instead focuses on putting possible dealers behind bars. Right now in America, there are 16 states that have decriminalized marijuana. Many of their laws are similar to that of New York, with low-level offenders receiving a misdemeanor or less for possession of a small quantity of marijuana.

A Step In the Right Direction

So far, the legalization of marijuana in certain states has been a huge success. And even though the laws have not yet been perfected, decriminalization elsewhere in the country has also been a step in the right direction. The distinction between these two types of legislation though is very important as the conversation about drug policy reform continues.

While some people may not feel comfortable with something like marijuana being legalized, decriminalization is a very realistic goal that every state can strive for. In essence, decriminalization acknowledges the inevitability of drug experimentation as well as the low-risk nature of marijuana as a controlled substance. By removing the stigma attached to the drug and encouraging a compassionate approach to the laws associated with it, it is possible to prevent questionable laws from interfering with and in some cases ruining people’s lives.

Take Portugal, for instance, who have become the undisputed world leader in progressive drug policy reform. Beginning in 2001, Portugal not only decriminalized marijuana, but they also decriminalized the use of all drugs. While many Americans who wouldn’t even be able to fathom the thought of legalizing marijuana may find this preposterous, the results speak for themselves.

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In 2012, they discovered many positive outcomes as a result of their new policies. Drug use had declined among people ages 15 to 24 (the most at-risk age bracket in terms of drug use), HIV infection rates are decreasing at a steady rate, and prison rates for drug offenders dropped significantly, among other things. Were it not for decriminalization, Portugal would still be dealing with escalating drug abuse issues that they had previously faced. 

It is important to note though that decriminalizing itself was not the only factor that attributed to these positive statistics. The rational and compassionate manner in which drug users are treated in Portugal should also serve as an example to other countries around the world. Safe materials are provided for people to use drugs if they so choose, thus eliminating the serious health risks connected with such practices as using dirty needles. Drug users are also encouraged to use government-funded facilities that are designed to keep them off the streets and out of danger. 

However, if we are going to make any progress in the US, then it begins with education and having a firm understanding of exactly what our laws imply. Only then will we be able to decide on more judicious solutions to the perpetual mistreatment that befalls those who use or experiment with drugs.