Governor’s Plan for Cannabis Legalization Forgets Affected Communities

What happens to those already in prison on marijuana-related charges? Several questions yet to be answered.

RICHMOND- In our analysis of the cannabis legalization report from the governors’ office, yesterday we looked at how it fails to undo the harms of criminalization. As we said in the story, the report recommends investing $5 million dollars of tax revenue from cannabis sales into law enforcement.

We were just getting started.

In addition to investing heavily in law enforcement, the report goes on the empower the judicial system to continue persecuting those affected most by criminalization.

The report suggests a process through which judges and law enforcement can access the criminal records of people charged with cannabis-related crimes, even after the plant becomes legalized.

It also suggests enabling police to continue arresting people cultivating the plant in their homes. Other policies suggested by the report also prevent those affected by criminalization from benefiting financially from legalization.

Arrest rates of Black individuals from 2010 to 2019 for marijuana possession happened at a rate 3.5 times higher than white people in Virginia. Conviction rates for Black individuals during that time occurred at a rate 3.9 times higher than white people.

For many thousands of Virginians with cannabis-related charges on their record, legalization without erasure of their criminal records won’t solve the impact of criminalization.

Expungement in Virginia 

Evidence that someone in Virginia has a criminal record is not actually erased by expungement or the sealing of records.

Other states destroy expunged records. However, criminal records expunged in the Commonwealth remain accessible to judicial agencies.

Under the Virginia Code, judges can grant ex parte orders permitting law enforcement to review expunged records. 

Even if cannabis becomes legalized in the Commonwealth, judicial bodies will still have access to this information.

Only cases where judges find the defendant not guilty can be expunged in Virginia. If the prosecution files a nolle prosequi or dismisses the case, those also qualify for expungement.

These records do not disappear even if the accused individual is not convicted.

Higher education institutions, employers, and landlords in Virginia will be able to find out if a person has been charged with a cannabis-related crime.

Sealed records are even less secure. 

The same legislation that decriminalized cannabis in the Commonwealth also created a process to automatically seal the records of people arrested for cannabis possession.

However, these records are still accessible to almost every level of the judicial system, including to law enforcement.

Investigators, probation boards, and any employee of state or local law enforcement can access this information. Attorneys and several state agencies also have access to these records. 

“From one set of chains to a new pair of handcuffs”

“It does not redress the fact that we have been harmed by judges, prosecutors, and police officers. And these are the people who will still be able to see records if they are only sealed,” said Marijuana Justice founder Chelsea Higgs Wise.

The process of law enforcement accessing sealed records also does not require judges to grant them a court order.

Sealed records are more accessible to judicial and law enforcement agencies than expunged records. 

“Validating this new sealed record system only transfers Black and brown Virginians from one set of chains to a new pair of handcuffs. Sealing records creates a surveillance model for our criminal justice system to continue praying on Black Virginians,” Wise wise. “We must have true expungements. 

The work group’s report recommended that the General Assembly consider sealing cannabis-related charges. According to the report ‘sealing can be done automatically and is more cost effective than expungement in this case.’ 

However, the true cost of only sealing records is much higher according to experts. 

“That’s nice to be cheaper and faster but that doesn’t necessarily completely clear the record of someone who has been convicted,” said co-chair of the UCI Center for the Study of Cannabis Robert Solomon. “Sealing to me is a halfway measure and it’s just perpetuating a past racist policy.” 

The report did not recommend automatic expungements. It also did not recommend creating a process for releasing people currently incarcerated for cannabis-related crimes. 

Personal Cultivation

The report also made a case against allowing personal cultivation if cannabis becomes legalized in Virginia.

Personal cultivation, or home-growing, of cannabis is legal for recreational and medical use in several other states. There are typically limits on the number of plants individuals can grow in their homes. 

‘Virginia should consider that this product is much more valuable than other controlled products, such as beer, that are allowed to be produced in home settings,’ according to the report.

There is also an element of of personal danger and risk because of the electrical and insulation needs for indoor growing.’ 

According to experts, the idea that growing cannabis in the home is dangerous is simply laughable. 

“It grows everywhere. It only needs sun, water, and some pretty poor soil to grow,” said Piomelli. “People who grow it indoors use just regular house lights.”

By not allowing personal cultivation, activists say this recommendation would disenfranchise vulnerable communities from growing and utilizing their own medicine. This is also an excuse for law enforcement to persecute growers without the capitol to start a business. 

“The narrative they’re creating of danger and fear in home cultivation is really offensive. This is also what’s been going on across the country. We’ve heard from advocates that this is something that Democratic and liberal legislatures have been offering as a compromise,” said Wise. 

Making home-growing illegal would prevent individuals from gaining experience in growing before they make the investment to sell it commercially. Unfortunately, this is not the only recommendation by the study that favors corporations over individual growers. 

Vertical Integration

Activists also say the report fails to support disproportionately impacted communities by allowing vertical integration in the Commonwealth’s cannabis economy. 

Vertical integration happens when one company owns numerous businesses up and down the supply chain of their product. If that sounds like a monopoly, you’re not far off. In extreme cases, vertical integration does monopolize the market. 

According to the report, ‘if Virginia were to prohibit vertical integration, it would limit some firms’ ability to utilize that business model to maximize efficiencies.’ 

However, ‘maximizing efficiencies’ does not translate into investment in entrepreneurs affected by criminalization. Instead, it makes it more profitable for corporations to take over the cannabis market. This model pushes out entrepreneurs from areas disproportionately impacted by criminalization by cornering the market. 

“The fact is that this report does not highlight and articulate the harms of a vertical model, and in fact the narratives of these work groups the last few months has been to protect this model,” said Wise. 

A Florida Supreme Court is currently considering a case that the state’s rule requiring vertical integration in the cannabis industry is unconstitutional.

Barriers like the monopolizing impact of vertical integration on the cannabis industry is among the many reasons why minority entrepreneurs have struggled to enter the market. 

According to a 2019 study by the Marijuana Business Daily, minorities own only 19.8% of cannabis businesses.

Banking

Inaccessibility to banks and private loans also prevents the people most impacted by criminalization from benefiting from legalization. 

The possession, use, and distribution of cannabis, including medical cannabis, is a federal crime. Federally, the plant is still classified as a Schedule I controlled substance. For context, heroin is also classified as a Schedule 1 controlled substance. 

“If you classify cannabis the same as heroin, you’re preventing a lot of research and you’re making everyone who uses it recreationally in violation of federal law. That’s what we need to change first. That by the way also prevents banking,” said Solomon. “Right now large banks do not want to take any cannabis money which makes it largely a cash industry which creates all kinds of other problems. 

Because it violates federal law, the vast majority of banks in the U.S. will not work with cannabis-related businesses. Only 633 banks and credit unions in the U.S. are affiliated with cannabis businesses, according to the same study by Marijuana Business Daily. The study shows there are 10,860 banks and credit unions in the U.S.,

What Else Is in the Report?

The work group’s report strongly suggests that the Commonwealth adopt a tiered tax system for cannabis-related products. Under this system, the tax rate on cannabis products would increase based on the percentage of THC in the product. 

The report also suggested the Commonwealth put limitations on the percentage of THC that can be sold in products. It went on to suggest requirements for child-proof packaging. The report also supported limitations on how close a dispensary can be to schools were also recommended by the report. 

What’s Next?

The report by the Marijuana Legalization Work Group suggested that a slow implementation of legalization would best serve the Commonwealth. However it did not specify how long that process might take. 

When they meet in January, members of the General Assembly are expected to take up cannabis legalization legislation.

Virginia Governor Ralph Northam has expressed support for legalization. According to Northam, he’s already working with lawmakers to draft the bill that would legalize the plant.

“It’s time to legalize marijuana in Virginia,” said Governor Northam. “Our Commonwealth has an opportunity to be the first state in the South to take this step, and we will lead with a focus on equity, public health, and public safety. I look forward to working with the General Assembly to get this right.”

Meg Schiffres is Dogwood’s associate editor. You can reach her at [email protected]