Sen. Creigh Deeds, D-Bath, described a measure to legalize marijuana as the biggest bill he’s seen in his 30 years in Richmond. Deeds and other Democrats have expressed support for legalization, but the legislation faces many unresolved questions and disputes, with about two weeks left on the clock.
How soon should the state stop punishing people for possessing small amounts? What new crimes make sense in a legalized market? What is the best way to ensure people affected by the so-called war on drugs have a role in the legalized market? And, what of the millions in new revenue?
The weight of these questions is giving some Democratic lawmakers pause, resulting in calls from senators to delay work on parts of the bill.
Significant rifts persist between the two chambers. Senate Democrats support the legalization of simple possession this summer to address the overcriminalization of people of color; the House has not. House Democrats want to ban seed-to-storefront licenses out of fear that “big marijuana” would trounce small businesses in the market; the Senate does not.
Republicans have broadly opposed legalization.
How pervasive concerns and differences are is unclear, but one previously overlooked signal came from the Senate last week. Senators slipped in a clause at the bottom of the bill that would require another vote from the legislature next year before the legal marketplace could take off, while allowing legalization of simple possession and expungements to kick off this summer.
“We’re part-time legislators. It’s 46 days and a 13,000-line bill. This bill makes more substantive change in the law than anything I’ve seen in the whole time I’ve been down here,” Deeds said in an interview.
“We want to get it right. We need to have it back before us next year. If you put a reenactment clause on it,” he said of the language, “you are forced to spend time on it. Nothing will slide.”
Sen. Scott Surovell, D-Fairfax, who led the effort to kick a final vote on the bill to next year, said a handful of Democratic senators are hesitant or outright unwilling to support full passage of the measure this session. Surovell also successfully introduced language in the Senate bill calling for a statewide, nonbinding referendum this fall to gauge the public’s support for legalization.
The House version does not include either of those conditions, or the language that would legalize possession of an ounce or less of marijuana this summer — a provision that has energetic support from civil rights groups.
Del. Don Scott Jr., D-Portsmouth, said he supports legalizing such possession starting this summer and will advocate for it in the House. But, the chief sponsor of the bill, Majority Leader Charniele Herring of Alexandria, said she has concerns.
“I’m not sure the House would be amicable to that,” she said in an interview. “I’m concerned about promoting an illicit market, and our ability to protect the safety of Virginians.”
Both Herring and Scott, however, criticized the Senate’s efforts to delay a final vote on the creation of the legal market.
“I hear that people thought it was an awfully big bill. I think we need to do our work now and not procrastinate,” Herring said.
“The House is ready to go,” Scott said. “I don’t know what the Senate’s motivations are to have several off-ramp options along the way.”
Gov. Ralph Northam threw his support behind legalization last year, vowing to lead Virginia into becoming the first state in the South to legalize marijuana, and to do it “right.”
His administration carefully crafted legislation that would promote Northam’s priorities: that legalization efforts should focus on promoting racial equity, revenues should in large part fund the expansion of state-funded preschool, and curbing underage use and adult substance abuse should be paramount.
Northam’s proposal would legalize possession of marijuana up to 1 ounce, but withhold criminal penalties up to 5 pounds of marijuana — starting at the same time as legal sales. (The House changed that to 1 pound.) The bill calls for automatic expungement of many marijuana-related offenses. It also would create a social equity licensing program to encourage people affected by the disparate criminalization of marijuana to benefit from the new legal market. It would tax sales at 21%.
Lawmakers in both chambers early on threw out Northam’s plan to have the Virginia Alcoholic Beverage Control Authority regulate the new industry, and start sales in January 2023. Both chambers opted to create a new agency to do the job, delaying legal sales to January 2024.
A spokeswoman for Northam declined to say whether he supports legalization this summer, before there’s a legal market. But she emphasized the governor’s support for passing legislation this session — his last as head of the state.
“Both bills would legalize marijuana in the right way,” said spokeswoman Alena Yarmosky. “Governor Northam is committed to getting this done this year, and he looks forward to working with legislators to make it happen.”
The proposed delay for legal sales has led some advocacy groups on the issue to shift their priorities, said Chelsea Higgs Wise, who leads the group Marijuana Justice.
Marijuana Justice was one of the 24 groups that signed onto a letter Tuesday urging Northam and the legislature to legalize simple possession of marijuana. The demand was listed as the first priority.
“The legal market and regulatory system will take time to set up. We can’t risk more people being caught in the system for acting in ways that will soon be legal,” the letter reads.
Wise said that she and other activists are pushing for support of legalization by this summer in the House, taking advantage of unexpected support for it in the Senate.
“Legalization this summer would be a real win, even if we don’t get the legal marketplace right now,” said Wise, who has focused much of her advocacy on the creation of a social equity program for people harmed by the disparate enforcement of marijuana laws, particularly Black and Hispanic Virginians.
While white and Black Virginians use marijuana at similar rates, Black Virginians are three times more likely to face arrest, the Joint Legislative Audit and Review Commission found.
“My priority has shifted because if we don’t do something that matters this year, we could be another state that puts this off more and more.”
Wise added: “Unfortunately, the way that we proposed this didn’t give lawmakers enough time to understand this issue. And I do think they need more time. We can come back and fight for an equitable market next year.”
Sen. Adam Ebbin, D-Alexandria, who is sponsoring the Senate version, didn’t sing praises for the provision calling for legalization this summer.
“I didn’t propose that change, and I don’t know that the House is for it,” Ebbin said. “But, it’s still a point of discussion that we’ll have to resolve.”
Sen. Jennifer McClellan, D-Richmond, led the push to legalize marijuana this summer, arguing that if the legislature intends to legalize marijuana, it should stop punishing people for having small amounts of it.
McClellan’s office said that 4,500 people have been arrested on marijuana-related charges since July 2020, and 1,848 penalized for simple possession. Virginia’s decriminalization law took effect in July, ending criminal charges for marijuana and instituting $25 civil penalties instead.
Herring said that legalization without a legal market and significant investments in education and substance abuse prevention could lead to more harm than good. She said she is also wary of the illicit marijuana market ballooning to a point that would endanger the ability of the new legal market to thrive.
Another point of serious debate between the two chambers is whether to allow for “vertical integration” in the new market — via a blanket license that would allow a business to participate in every facet of the market, from seed to sale.
Right now, the state’s medical marijuana market is regulated that way, and medical marijuana groups argue that protecting that structure for their businesses would be fair given their investments.
The Senate broadly allows vertical integration, which Del. Lashrecse Aird, D-Petersburg, said is a “nonstarter.”
In the House, lawmakers allow vertical integration only for medical marijuana businesses, and for every facet of the process except retail sales.
Aird said that allowing large businesses a heads-up on the retail side could stifle small businesses that didn’t get a head start by jumping into the medical marijuana market.
Despite some hurdles, Ebbin said he expects lawmakers to find a compromise so that marijuana legalization can move ahead in Virginia — coming back for another vote on the issue next year. He said the clause calling for a referendum may show lawmakers the extent of support for legalization in Virginia, which a recent poll estimated at about two-thirds.
“This is a pretty big policy initiative and having the public weigh in would help legislators decide if they want to complete this process. We may even have wider support beyond Democrats,” Ebbin said.
“I don’t think people are skittish on the idea. But, under the Senate bill, if they don’t give it another approval next year, there would not be a regulated legal market to begin January 2024. That’s what’s required.”