Why Is It Still So Hard To Legalize Marijuana?

by | Jul 19, 2019 | VIRGINIA POLITICS

Virginia Attorney General Mark Herring has asked that question in public lately, and it’s one that all of our lawmakers should be considering.

Weed isn’t a big deal. The military is treating PTSD with ecstacy. The legal right to grow weed has existed in our nation’s capital for years. The city of Denver has medical mushrooms, while the state of Colorado has earned over $1 billion from pot sales.

The passage of the 2018 Farm Bill in December clears CBD to hit its projection as a $22 billion industry by 2022, despite the FDA dragging their feet. Cannabis may remain illegal at the federal level, but the majority of the country currently utilizes weed for medicinal purposes. Even as the war on drugs is waged by our executive leadership, a multi-billion dollar pot market continues to steamroll across the country, with Illinois becoming the 11th state to legalize recreational use. 

America’s political machine has moved on; presidential debates revolve around fresh topics, like immigration, gun control, and climate change. In the most recent Democratic debate, cannabis wasn’t even discussed, as legalization was approved all-but-unanimously by 21 of 22 candidates — the exception being our Uncle-in-Chief, Joe Biden. 

Today, you can not only smoke weed: you can drink it, drop it in your eye, have sex with it, prepare entire meals with it, open restaurants based on it, tax it for college funds, and make an honest career of growing it. And far more people use it than you might expect — even Jesus dabbled in some cannabis oil. 

Campaigns for legalization have been backed by a myriad of findings that, under safe administration, show the medicinal benefits outweigh the risks of cannabis use. Gateway-drug theories and communist sympathies once tied to the drug have been debunked. Cannabis legalization has also been shown to reverse rates of opioid abuse and deaths.

Save societies’ religious zealots and frothing teabaggers, people don’t really have any issues with weed. So why isn’t it legal here in Virginia yet?

Virginia Attorney General Mark Herring was the latest to ask that very question, in an Op-Ed published by the Daily Press. 

“Criminalizing minor marijuana possession is just not working. It is needlessly creating criminals. It is costing us a lot of money — the social cost is enormous, and there are disparities in enforcement you reported,” Herring wrote. “Virginia should decriminalize possession of small amounts of marijuana, address past convictions, and start moving toward legal and regulated adult use.”

While Herring’s opinion revitalized the topic of cannabis reform, he isn’t the first state official to speak up in recent months. Gov. Ralph Northam suggested decriminalization of simple possession during his State of the Commonwealth speech in January.

“We want to keep people safe,” Northam said. “But we shouldn’t use valuable law enforcement time, or costly prison space, on laws that don’t enhance public safety.” 

“Current law imposes a maximum 30 days in jail for a first offense of marijuana possession. Making simple possession a civil penalty will ease overcrowding in our jails and prisons, and free up our law enforcement and court resources for offenses that are a true threat to public safety.”

And before Northam’s speech, many Virginia judges publicly refused to jail first offenders for misdemeanor cases of marijuana possession. In a letter sent on January 3, Greg Underwood, the Commonwealth’s Attorney for the City of Norfolk, informed judges, law enforcement, and public safety officials that he won’t prosecute misdemeanor marijuana charges. He also stated that his office would support the release of defendants on bail in more misdemeanor and felony cases. Portsmouth’s Commonwealth Attorney Stephanie Morales rolled out a similar policy.

“The Office will cease prosecuting all misdemeanor marijuana possession cases and will move to nolle prosequi or dismiss such cases that fall within our purview,” read the memorandum published by Underwood.

Underwood cited an annual report that showed about 80 percent of first-offense marijuana possession arrests in Norfolk were African Americans in 2016 and 2017, despite the city’s population being 43 percent African American.

Federally, marijuana remains a Schedule I drug. The DEA still pairs it with LSD and heroin in its potential for abuse, with no federally recognized medical benefits, despite national polls showing significant public support for its legalization. Even CBD is hampered by the FDA, an organization infamous for approving controversial drugs like Zoloft and Dsuvia with little to no clinical testing.

And it isn’t much better here in Virginia. In 2015, the state general assembly passed a special case usage of non-psychoactive marijuana oils to treat intractable epilepsy — making us the 46th state to pass any form of cannabis legislation. The Commonwealth also allows prescribed marijuana and THC, but only for alleviating effects of chemo treatment in cases of cancer and glaucoma. 

Aside from that, all other cannabis legislation — six bills thus far, under the recommendation of law enforcement, Governor Northam and researchers alike — have died in committee.

“It’s not the governor, it’s not the bill sponsor themselves,” Virginia NORML (National Organization for the Reform of Marijuana Laws) Executive Director Jenn Michelle Pedini told RVA Magazine. “It really comes down to the Senate Courts of Justice Committee and the House Courts of Justice Committee. That’s where marijuana reform goes to die.”

Just this past January, the Virginia House’s Courts of Justice defeated HB 2317 in a 5-3 vote, a bill that proposed legalizing cannabis for those over 21, decriminalizing simple possession of cannabis and reducing maximum jail time for those underage. The Virginia state Senate’s Courts of Justice also defeated SB 997, a similar measure proposed by Sen. Adam Ebbin. A first offense for simple possession of marijuana (under 14 grams) remains a Class 1 misdemeanor, punishable by a fine of up to $500 and jail time of up to 30 days. 

“I will continue to fight for Virginians of all walks of life, from all political backgrounds, who believe as I do, that marijuana prohibition has been a failure,” said Sen. Stephen Heretick (D-Portsmouth), who proposed the bill. “From the bottom of my heart, I thank you for your support and for standing with me.”

Many argue that jail time served on marijuana charges is a financial waste disproportionately affecting African Americans. According to a report by the Virginia Crime Commission, African Americans constitute a majority of small possession cases, despite the fact that only 20 percent of Virginia residents are black.  

The report also stated that a first-time marijuana offender with court-appointed counsel can “expect to pay approximately $400 to $800 in costs and fees depending on the type of probation ordered.”

“Studies show that blacks and whites use marijuana at about the same rate,” said American Civil Liberties Union-Virginia executive director Claire Guthrie Gastañaga. A 2017 ACLU report concluded black Americans are 3.73 times more likely than whites to be arrested for marijuana possession.

“It is not surprising that the War on Marijuana, waged with far less fanfare than the earlier phases of the drug war, has gone largely, if not entirely, unnoticed by middle- and upper-class white communities,” stated the report.

A 2017 Virginia State Police report shared similar results, reporting that African Americans are more likely to be jailed for marijuana possession, despite using the drug at the same rate. Black defendants are also more likely than white defendants to be found guilty, rather than have their charges dismissed, according to state court records

Crime analyst and former detective Richard James told WKTR that law enforcement can still cite you for possession of marijuana, and explained what could happen in that case. 

The evidence is clear that there are racial biases in the enforcement of marijuana,” said James.

Democrats argue it is a Republican-controlled assembly that has stalled marijuana reform. 

“If we elect a Democratic majority, I think you are looking at a clear, distinct possibility marijuana will be part of a new Virginia economy, along with clean energy,” said Kathy Galvin, a 2019 Virginia delegate candidate, according to news reports.

Yet, sympathy for cannabis has even come from Republican legislators, like the case of former Speaker Of The US House of Representatives John Boehner, who sees the plant, under the appropriate supervision, as a cash crop and a personal liberty

“It can be used to excess, and likely will,” Boehner told NPR. “But that doesn’t mean that we should take wine or liquor off the market, or beer or cigarettes for that matter. And I do think that by decriminalizing, you’re going to open up a lot more research so we can learn more about the 4,000 year history of the use of this plant.”

In 2018, the Virginia Senate authorized the first five medical cannabis dispensaries for non-psychoactive CBD and THC-A oils, most of which will be open by the fall 2019. In the next session, Del. Glenn Davis, R-Virginia Beach, filed HB 2245, a bill to double the number of medical cannabis dispensaries. 

An estimated 1.1 million jobs could be created by 2025 if marijuana were legalized, according to an analysis by New Frontier Data. Dalitso, a Manassas-based investor group that owns one of the first five dispensaries licensed in Virginia, began with an initial staff of 50 and has significantly grown, based solely on projected sales within the state.

Photo by Marijuana Pictures

“The cannabis industry is growing, and Virginia is growing along with it,” said Greg Kennedy, a partner with Dalitso, according to news reports.

In contrast, some Virginia Republicans have merely paraded legislation under the banner of reform. In 2018, state Senate Majority Leader Tommy Norment proposed his own marijuana legislation, SB 954, at first touting it as cannabis legislation, only to later restate that the bill would only offer a chance for expungement of records and negation of possible jail time to first offenders.

“Legislative change is about the possible,” said Jeff Ryer, a spokesman for Norment. Ryer told the Richmond Times-Dispatch that Norment removed measures to decriminalize because with those measures in place, the bill would have no chance of passage.

The problem is, Virginia does not allow expungement. Norment’s bill would have simply created a separate registry apart from the national criminal database, though offenses would still show up in background checks. Tickets and fees issued through the program would be funneled into a separate fund for the state police, who would have been required to run the registry.

“Senator Norment’s bill is an expungement measure not sharing a freckle in common with decriminalization,” Bill Farrar, ACLU of Virginia public policy and communication director, told the Richmond Times-Dispatch. “This is an urgent criminal justice and racial justice issue in Virginia that lawmakers should be taking more seriously.”

The bill passed the Senate by a near unanimous 38-2 vote, but others involving marijuana died in the House Courts of Justice Committee. And though Norment said he favored decriminalization, he later voted against Senator Adam Ebbin’s 2019 decriminalization bill, SB997, in the Senate Courts of Justice Committee.

“Virginians want marijuana possession decriminalized, not to be charged three times as much as a regular expungement in order to be tracked on a ‘marijuana offender’ list,” Pedini said.

“The primary impediment to meaningful marijuana law reform in Virginia is the leadership of legislative committees,” Pedini said. “While the overwhelming majority of Virginia lawmakers may favor decriminalizing marijuana, or even legalizing responsible adult use, unless those bills can advance through committee to the floor for a vote, they simply cannot succeed. ”

The main contention over marijuana legislation today is where the road ends; Herring and many Democrats want eventual legalization, while many Republican legislators don’t want anything beyond decriminalization. Though some GOP legislators have humored small measures toward weed reform, short sporadic bursts will never be enough to break up the party’s closed front; concrete changes in Virginia will require the unanimous assent of Republican leadership. Until then, any efforts to pass cannabis legislation will be crippled by the very saboteurs that have gone to battle where other issues are concerned over GOP-endorsed virtues of personal liberty, limited government, and free markets that, where marijuana is concerned, they stand firmly against.  

If Virginians want fairer and safer marijuana laws, they must elect those candidates who will support such measures,” Pedini said.

And despite a public that supports reform at historic highs, politicians are prepared to vote along party lines rather than the wishes of their own constituency. It’s true that the war on drugs was a failure; so why are so many Virginia lawmakers still fighting?

John Donegan

John Donegan

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