Even members of the General Assembly admit what passed Feb. 27 wasn’t exactly legalization. So what does the bill actually do?
RICHMOND – The Virginia General Assembly signed off on a bill Feb. 27 that was supposed to legalize marijuana. State lawmakers promised something different than the final version that passed, however. Even some Assembly members admit this isn’t legalization.
“The bill we passed today moves the ball forward, but let’s be clear: this is not marijuana legalization,” said State Sen. Jennifer McClellan. “It sets up a framework to get us on a path to legalization in 2024, gives JLARC an opportunity to compare the framework to it’s report, and ensures additional General Assembly action prior to marijuana reform and legalization. [But] we have a long way to go on enacting marijuana legalization in an equitable way that redresses the harms of prohibition on Black and Brown communities.”
Three Things Are Certain
Under the bill, only three things are certain. First, the regulatory agency for the legal cannabis market, called the Virginia Cannabis Control Authority, and its associated boards will convene beginning July 1, 2021. Second, legalization of adult possession of up to an ounce of marijuana will happen on January 1, 2024. Lastly, also on the first day of 2024, retail marijuana stores will open in the Commonwealth.
Other than those three things, the future of legalization in Virginia is undecided and unregulated. That’s because the majority of the bill’s regulations require another vote in the 2022 General Assembly session just to pass. Sen. McClellan had submitted an amendment that would have ended all penalties for simple possession on July 1, 2021, but even that died in conference over the weekend. So you’ve got a framework now, but little else.
“The only thing we did was set up a way for corporations to get licenses and to create profits,” said Chelsea Higgs Wise, founder of the cannabis advocacy nonprofit Marijuana Justice. “The industry understands what their role would look like, but the people in our day-to-day with police and with the plant, we have no idea what will be legal and what that will look like for us.”
The Budding Marijuana Industry
Despite the bill’s commitment to legalize adult possession in three years, advocates for an equitable marijuana industry say they’re back to square one.
Even with legalization on the horizon, that doesn’t change the situations of thousands of people previously or currently suffering the impacts of criminalization. Those currently in jail for marijuana-related charges, for example, will not necessarily have an avenue for release or expungement until 2024.
“Even the threat of business before justice is hard to stomach. Meaning that some of my constituents are in jail right now and will continue to sit in jail while we are establishing a regulatory authority for the business pieces,” said Del. Marcia Price (D – Newport News).
The bill does establish guidelines which would create some opportunities for people disproportionately impacted by criminalization to benefit from legalization. However, those guidelines are also subject to reenactment by the General Assembly next year. Even if they pass, advocates say these social equity programs and boards would not go far enough in addressing the harms of criminalization
Racial Equity Takes A Hit
In Virginia, arrests on marijuana-related charges totaled 26,470 in 2019. According to the ACLU, Black people are 3.6 times more likely than white people to be arrested for possession of marijuana in the US.
Since decriminalization last year, around 50% of people with charges related to marijuana possession in Virginia are Black, according to Virginia Public Media. Only about 20% of the Commonwealth’s population is Black, according to the US Census Bureau.
Though originally presented as an attempt at establishing an equitable marijuana market in Virginia, advocates say the legalization bill before the governor fails to address the harms caused by criminalization.
For example, the bill puts limits on the number of licenses Virginia will issue to marijuana-related businesses. Under the bill, there will be a maximum of 400 retail marijuana stores in the Commonwealth. The number of marijuana wholesalers in the Commonwealth has a cap limiting it to no more than 25. Only 60 marijuana manufacturing facilities can receive licenses in Virginia. Lastly, a total of 450 marijuana cultivation facilities can operate in Virginia at once under the bill.
The legislation would create a special license program for people disproportionately affected by criminalization. These applications will receive priority. However, there’s nothing in the bill that specifies how many of the licenses available will be reserved for these applicants. That’s a concern, according to advocates, who say at least 50% of licenses should be for social equity applicants.
“The vagueness scares me to death, because capping licenses is an equity issue. And it’s particularly an equity issue if you’re not also….including equity licenses in that capped quantity,” Wise said.
Weeding Through the Details
If you legalize marijuana, tax revenue will grow between $154 and $257 million by the fifth year of sales. That’s according to a (JLARC) study on marijuana legalization from 2020. Those projections are assuming a marijuana tax rate of 20%, with a local sales tax rate of 5.3%.
If the Assembly reenacts it as written, the bill set the state-wide marijuana tax rate to 21%. It also gives localities the option to add another 3% in local taxes.
The bill divides revenue from marijuana taxes into four categories. 25% of the revenue will go to the Department of Behavioral Health. The department will use this money to administer substance use disorder prevention and treatment programs. The bill allocates 5% of this revenue to public health programs. Under the bill, 40% of the revenue goes to pre-K programs for at-risk children ages three and four. Lastly, 30% of the revenue will support the Cannabis Equity Reinvestment Fund. The fund will be used to support people impacted by criminalizing through grants, scholarships, and financial aid.
A Call For Higher Investment in Affected Communities
According to both marijuana and youth justice advocates, 30% is not enough to redress the harms of criminalization.
“You’ve got to rebuild the families. You’ve got to rebuild the structures within those communities first. Because kids who get early childhood development, if they are still living in communities that are lacking in so many other ways, all that you’re going to do is open their eyes even earlier to the disparities that they’re living in,” said Valerie Slater, RISE For Youth executive director.
RISE For Youth is a nonpartisan nonprofit that works to reform the juvenile justice system. Slater and Wise point to New Jersey’s legalization process as a model for the Commonwealth. In New Jersey, 70% of tax revenue from legalization will support social equity programs. These programs are aimed at helping communities adversely affected by marijuana criminalization.
“Let’s get rid of those disparities all together. And a seventy percent investment would be a great step towards making that happen,” Slater said.
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Not An Ounce of Criminal Justice Reform
Both Slater and Wise also object to portions of the bill that punish people under 20 caught with marijuana. Though adult use of marijuana will be legal in 2024, juveniles could still face consequences for being caught with it.
Under this bill’s structure, people 20 years old or younger who possess or smoke marijuana will receive a $25 fine. A judge can also require them to enter substance abuse treatment or educational programs if necessary.
“We should not at all be criminalizing kids, at all, for marijuana if we are going to truly decriminalize it, or legalize it,” said Slater.
Advocates also say the bill, if the General Assembly reenacts it next year, would create new crimes for drivers. Under the bill, it is unlawful for anyone to consume marijuana products while driving. While advocates support that idea, in practice, they say it will be inequitably enforced.
“Our problem isn’t that people shouldn’t be using marijuana while they’re driving or a passenger in a car. The problem is what this is going to do for police-citizen interactions,” said Bryan Kennedy, policy director at Justice Forward Virginia.
Open Container Laws Don’t Apply
Under the bill, police officers can assume that a person has consumed marijuana. This inference can be on the basis of their physical characteristics and the presence of open containers of marijuana. However, advocates say these restrictions are overly broad, and will continue to disproportionately impact Black communities.
“The way this is written, our concern is that police officers are going to see a green leafy substance on the floorboard of the car, say the person’s eyes are bloodshot, and then use that as an excuse to search the car, including the glove compartment and the consoles, even if they’re closed, under the pretext that they’re looking for these open containers of marijuan. But really just as an excuse to search people’s cars,” Kennedy said. “Because there’s this inference that they were using it, the person would then basically have to prove they weren’t using it. In a lot of ways it makes it illegal.”
What constitutes an open container, Kennedy says, is also up for debate. Due to the vagueness of the bill’s definition of an open container, advocates worry the criminalization of possessing marijuana will practically go back into effect.
“The most nefarious way this could be interpreted is it essentially makes it illegal to have marijuana in your car, in an open container, which basically criminalizes having most marijuana in the car,” said Kennedy.
While the number of vehicle searches by police subside in states that legalize, racial bias in these police stops persist. That’s according to a study published in Nature Human Behavior.
So Did It Really Legalize Marijuana?
When it passed the General Assembly Saturday, the bill to legalize marijuana in Virginia did not receive any applause. Instead, many prominent advocates said it’s nothing to celebrate.
“It won’t make the system fairer. More Black and brown kids will be criminalized, driving while Black will continue to be a thing,” said Clarie Gastañaga, executive director of the ACLU of Virginia. “Black and brown people will continue to be targeted.”
Several candidates for office, including Democrats, agreed the bill does not go far enough.
“This is the antithesis of justice. Negligent sloppy work,” said Virginia House of Delegates 49th District candidate Karishma Mehta.
Sean Perryman, who is running for the office of Lt. Governor, echoed Mehta’s words.
“What was passed in Virginia was not marijuana legalization. It was a talking point. It may be enough for a headline, but it does little for Black and brown Virginians,” said Perryman.
Even the bill’s sponsor, Del. Charniele Herring (D – Alexandria), said it fails to address the harms of criminalization.
“I recognize that neither decriminalization which we passed last year nor legalization alone will eliminate the racial disparities and their issues surrounding marijuana,” said Herring. ““I think this bill is an important step.”
Now, House Bill 2312 goes to Governor Ralph Northam’s desk for a signature. Northam, who has already expressed public support to legalize marijuana, is expected to sign it. However, advocates say it’s not too late to fix the bill. The governor has the ability to amend the legislation.
If you want to encourage the governor to amend the bill or send it back to the General Assembly for reconsideration, you can! Just call him at 804-786-2211 or email him at this link. You can also support efforts to ensure racial equity in Virginia’s push to legalize marijuana by donating to Marijuana Justice here.
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