A conviction for drug possession can carry some prison time. Each state law is different, though the sentence is generally for less than a year.
Major factors in how much prison time you could get include the type and quantity of the controlled substance, as well as your prior criminal record and what jurisdiction you are in.
The type of drug
The type of drug can matter, particularly if it is marijuana and the charge is a state offense rather than a federal one. However, the type of drug makes much more of a difference if the quantity is high enough to elevate the charge from simple possession to either:
- drug possession with an intent to sell, or
- drug trafficking.
Many states, like New York, have made the possession of small amounts of marijuana legal, even if it is for recreational use. Many others have made it legal for medicinal use only. Some other states, as well as the federal government, continue to criminalize marijuana possession. If you are arrested and charged with marijuana possession in one of these states that still criminalizes it, you could go to jail.
Typically, possession of marijuana or cannabis for personal use is a misdemeanor that carries less than a year in jail and a fine. For example, in Texas, possession of less than 2 ounces of marijuana carries up to:
- 180 days in jail, and/or
- $2,000 in fines.[1]
“The good news is that federal prosecutors rarely pursue criminal charges for mere possession of marijuana anymore. It just is not a serious enough offense to justify federal prosecution. Back in 2014 there were 2,172 people serving federal sentences for simple possession of marijuana, but in 2021 that number had declined all the way down to 145.[2]” – criminal defense lawyer Neil Shouse
Drug schedules under the Controlled Substances Act
Each state and the federal government has a statute that regulates drugs in its jurisdiction. These laws list drugs and chemical compounds in several schedules based on:
- how likely they are to make you addicted to them or dependent on them,
- their potential for abuse, and
- whether there is a medicinal use for the drug.[3]
Depending on the state, which schedule the drug is in can determine the potential prison time for possessing it.
The federal law that lists these drugs is the Controlled Substances Act.[4] It lists 5 drug schedules. Here is a table of those schedules, as well as some examples of the drugs in each one[5]:
| Schedule | Potential for abuse | Accepted for medical use | Potential for addiction or dependence | Examples |
| I | High | None | High, even under medical supervision | Heroin, marijuana (though many states have changed this in their state laws), MDMA, peyote, and LSD |
| II | High | Yes, though possibly with severe restrictions | Severe physical and mental addiction or dependence | Cocaine, PCP, codeine, methamphetamine, morphine, methadone, Oxycodone, and opium |
| III | Medium, or less than Schedules I or II | Yes | High mental addition or moderate physical dependence | Ketamine, barbiturates, and anabolic steroids |
| IV | Low, or less than Schedule III | Yes | Limited mental or physical dependence or addiction | Xanax, Valium, and Ambien |
| V | Low, or less than Schedule IV | Yes | Lower than Schedule IV | Cough suppressants with small amounts of codeine |
Under federal law, mere possession of any of these illegal drugs carries up to 1 year in prison and $1,000 in fines for a first-time offender.[6]
Most state laws that regulate drugs are based on the federal Controlled Substances Act. However, the penalties that they impose may depend on the type of drug you have.
For example, in Colorado, possession of a controlled substance is usually a misdemeanor that carries:
- 6 to 18 months in jail, and/or
- $500 to $5,000 in fines.[7]
However, the penalties increase if you possess:
- more than 4 grams of Schedule I or Schedule II drugs (other than marijuana),
- any amount of Rohypnol, ketamine, or bath salts, or
- between 1 and 4 grams of any substance that contains any amount of fentanyl, carfentanil, or benzimidazole opiate.
The penalties for possessing these substances in Colorado are:
- 6 to 12 months in prison, plus a year of parole,
- $1,000 to $100,000 in fines, and
- a drug offender surcharge of between $1,500 and $4,500.[8]
The quantity
How much of the drug you have can drastically increase the amount of jail time that you face. Each jurisdiction’s drug laws will have threshold amounts that escalate the charges from simple possession to:
- possession with intent to sell, or
- drug distribution.
For example, federal drug law imposes the following prison sentences for drug possession with intent to distribute:
- 5 to 40 years if you have 28 grams or more of crack cocaine, and
- 10 years to life in prison if you have 280 grams or more of crack cocaine.[9]
Contrast this with the maximum of 1 year in prison for normal federal drug possession.[10]
Some states, like California, do not have stated threshold amounts.[11] Instead, it is up to the prosecutor to prove that you possessed the drugs and intended to sell them. This is generally done through circumstantial evidence, such as:
- the amount that you had,
- how or whether the drugs were packaged for sale,
- the presence of drug paraphernalia, and
- whether you were arrested by an undercover law enforcement officer in the middle of making a sale.
Your prior criminal record
If you have a criminal record, especially one that includes prior convictions for drug offenses, you may get a longer prison sentence.
For example, if you are convicted for a second offense of federal drug possession the penalties would be:
- 15 days to 2 years in prison, and/or
- $2,500 in fines.[12]
Third and subsequent convictions for federal possession of drugs carry:
- between 90 days and 3 years in prison, and/or
- $5,000 in fines.[13]
The jurisdiction
The prison time for drug possession can vary quite significantly depending on the state, or whether it was a federal offense.
California has some of the lightest drug possession laws in the country. Not only is marijuana legal to possess for personal use. However, jail sentences for simple possession are typically under a year.
Many jurisdictions, such as Los Angeles, do not prosecute simple possession. Many drug courts also tend to avoid imposing jail time, preferring diversion or probation.
Louisiana has some of the toughest drug possession laws. Possessing any Schedule I drug other than marijuana is a felony that carries up to 2 years in prison and a fine of up to $5,000. Possessing more than 2 grams of it carries a mandatory minimum sentence of a year, with a maximum of 10 years.[14]
Other aggravating factors
Many states enhance prison time if aggravating factors are involved. Some of these include:
- possessing drugs near a school or church,
- drug possession while on parole or probation, and
- possession while armed.
Not all states recognize the same aggravating factors, though.
The drug court system
Drug possession cases are often heard in state drug courts. These are specialized court dockets. The programs generally have judges and prosecutors who focus on drug charges, as well as drug treatment professionals and social workers on staff. In many jurisdictions, these drug courts focus on getting offenders the treatment that they need.
A common aspect of drug court is diversion. Drug diversion is a program for resolving drug offenses, especially drug possession. Eligibility requirements can be strict, though they generally require it to be a first offense and a non-violent drug crime. Most diversion programs use the following steps:
- you plead guilty to the charges,
- the judge suspends the sentence and sends you to the diversion program,
- you complete the program’s requirements, which generally involve going through a drug treatment program and following other rules, and
- once diversion is completed, the judge dismisses your criminal case and typically expunges the record of the drug conviction.
If you fail to complete the diversion program, a suspended sentence will be imposed.
Different types of drug charges
Drug possession is the lowest level drug crime that you can commit. You can face a drug possession charge just by knowingly having a controlled substance.
Other drug crimes are more severe. They are:
- possession with intent to sell, where you were caught in possession of more drugs than you could use on your own, raising the presumption that you had so much so that you could sell it,
- drug trafficking or transportation, where you moved a large quantity of drugs and/or sold it or gave it away, and
- drug manufacturing or cultivation, where you grow or compound a controlled substance, such as crystal meth.
These offenses can carry multiple decades behind bars.
Legal Citations:
[2] U.S. Sentencing Commission, “Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System” (January 2023).
[3] See 21 USC 812.
[5] See 21 USC 812(b).
[7] CRS § 18-18-403.5.
[8] Same.
[9] 21 USC 841(b)(1).
[10] 21 USC 844.
[11] California Health and Safety Code 11351 HHS.
[12] 21 USC 844.
[13] Same.
