With Deadline Looming, Virginia Lawmakers Still Negotiating Marijuana Legalization Bill

By Ned Oliver, Virginia Mercury

February 25, 2021

But the direction of the negotiations between the chambers so far, as detailed by three sources familiar with the talks, suggests the final bill is likely to disappoint civil rights advocates who have been pushing for an immediate end to criminal penalties related to the drug.

Both the House and Senate passed legalization bills that wouldn’t allow sales of recreational marijuana to begin until Jan 1., 2023 — time both sides agree they need to set up a new cannabis authority to regulate the industry.

But they differed over whether criminal penalties related to the drug should stay in place until legal sales begin. The House advanced legislation that wouldn’t end prohibition until 2023 while the Senate proposed legalizing possession of an ounce or less of marijuana beginning July 1 of this year.

The House, whose members worried that repealing criminal penalties before legal sales are permitted would encourage the black market, appear to have won the debate, with Senate negotiators agreeing to maintain existing criminal penalties until 2023, according to the three sources, who spoke on the condition of anonymity to discuss private negotiations.

The approach stands in contrast to a legalization bill signed by New Jersey’s governor on Monday, which immediately ended criminal penalties for possession of up to six ounces even though retail sales aren’t expected to begin until 2022 at the earliest.

Advocates had called the Senate’s position the minimum the legislature could do to address criminal penalties before the retail marketplace opens. Sen. Jennifer McClellan, D-Richmond, who proposed it, said it didn’t make sense to continue prosecuting people for something lawmakers had voted to legalize.

“We can’t risk more people being caught in the system for acting in ways that will soon be legal,” wrote a coalition of 25 advocacy organizations led by the ACLU of Virginia and the reform group Marijuana Justice.

Lawmakers skeptical of repealing criminal penalties before there are legal avenues to buy the drug have said they view the decriminalization legislation they passed last year, which reduced penalties for simple possession to a $25 civil fine, an adequate interim step.

Chelsea Higgs Wise, director of Marijuana Justice, countered that the approach unnecessarily allows the disproportionate enforcement of marijuana laws against Black Virginians to continue for two years. She said court data obtained by advocates shows that even with reduced fines, Black people are four times more likely than White people to face citations despite using the drug at the same rate.

“The commonwealth’s ‘decriminalization’ enforcement maintains Virginia’s racial disparities and goes against Governor Northam’s stated commitment to social equity, racial equity, and economic equity for marijuana legislation,” she wrote in a statement.

The two chambers are continuing to debate another focus for advocacy groups: how to treat people under 21 caught with the drug. As drafted, the Senate’s version would dramatically increase penalties for underage users caught with the drug, increasing the civil penalty for possession from $25 to $250 for people ages 18 to 20. Minors would face a $200 civil penalty for a first offense.

Valerie Slater, the director of RISE for Youth, which advocates for reforming the state’s juvenile justice system, said she favors the House’s approach, which would also increase penalties for underage possession, but only on subsequent offenses.

But she pointed to New Jersey’s new law as a better alternative, which calls for a written warning for a first offense, a call to parents for a second offense and referral to community services for a third offense. Members of the state’s Black Legislative Caucus opposed fines, worrying “police would continue to stop and fine minority youth more frequently than White people under 21,” according to The Star-Ledger.

“At no point should this be a crime for kids,” she said. “Can we just take New Jersey’s language and drop it into ours? It would be ideal.”

Another ongoing point of contention among the House and Senate is whether to attach a reenactment clause to administrative provisions of the legislation, which would require lawmakers to revisit the details of how the legal marketplace is set up when they convene next year.

Lawmakers in the Senate back the approach, saying there are too many questions about how to license and regulate marijuana businesses to finalize the legislation this year. Lawmakers in the House, who are up for reelection in November, have resisted, arguing the delay is unnecessary.

This story was originally published by the Virginia Mercury. For more stories from the Virginia Mercury, visit Virginia Mercury.com.