Should Pennsylvania Reduce Marijuana Possession to a Summary Offense?

There are some peculiar glitches in Pennsylvania’s marijuana laws. One such inconsistency is that possession of a small amount of marijuana for personal use, defined as less than 30 grams of cannabis, is an ungraded misdemeanor, punishable by up to 30 days in jail and a $500 fine, yet the usual maximum penalty for an ungraded misdemeanor is up to one year incarceration and a $2,500 fine. By contrast, the maximum penalty for summary offenses under the Pennsylvania Crimes Code is 90 days in jail, with maximum fines ranging from $300 to $1,000. Thus, the maximum penalties for possessing a small amount of marijuana in Pennsylvania are already less than the maximum penalty for summary offenses like underage drinking, disorderly conduct, public drunkenness and criminal mischief. Despite this, possessing a small amount of marijuana is charged as a misdemeanor instead of a summary offense.

You may wonder why reducing possession of a small amount of marijuana from a misdemeanor to a summary offense is of any consequence, if the penalty is already less than the possible penalties for summary offenses. The simple reason is that misdemeanor convictions carry more collateral consequences than summary offense convictions. For example, all misdemeanors are fingerprintable offenses, while most summary offenses are not fingerprintable offenses. If you are charged with possession of a small amount of marijuana, you will be fingerprinted and photographed. You will then be in criminal data bases maintained by the Pennsylvania State Police and FBI. Your marijuana possession charge will appear in every type of criminal background check. If you are merely convicted of a summary offense, your case will only come up in some, but not all criminal background checks. With the exception of retail theft, summary offense convictions will not appear in background checks, which cover only fingerprintable offenses, but they will come up in background checks performed by private companies, as these background check companies will find every docket sheet, uploaded by court systems onto the Internet.

Almost all employers ask whether a candidate has ever been convicted of a misdemeanor or felony on employment applications, while many employers are far less concerned with summary offense convictions. While a misdemeanor or felony record may be an absolute bar to employment with a particular employer, a summary offense conviction is a mere “negative differentiator.” Those with a summary offense conviction look less attractive than candidates with a clean record, but the candidate could still be hired. Therefore, reducing possession of a small amount of marijuana to a summary offense creates less of a hurdle to employment.

It should be noted that reducing possession of a small amount of marijuana to a summary offense would not eliminate all collateral consequences. A person convicted of this offense faces a six month suspension of his or her Pennsylvania driver’s license, while out of state license holders lose their ability to legally drive in Pennsylvania for six months. Also, those convicted of possessing any illegal drug, even a few grams of marijuana, are ineligible for federally subsidized student loans or college financial aid. These collateral consequences are nothing short of ridiculous, and should be abolished.
Of course, marijuana will eventually be legal in every state, including Pennsylvania. Washington and Colorado are the first cracks in the dam of Prohibition. In the mean time, Pennsylvania should take the far less controversial step of reducing the charge of possession of a small amount of marijuana to a summary offense.

Matt McClenahen is a criminal defense lawyer in State College, Pennsylvania, home of Penn State University. As a defense attorney in a college town, he handles scores of marijuana-related cases each year.