Marijuana Decriminalization in Virginia: Issues and Recommendations for Regulators

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By Don Rippert

Ready, fire, aim. In Virginia, it seems likely that the Democratic Party’s control of the General Assembly and Governorship will result in decriminalizing possession of small amounts of marijuana. This legislation will likely be passed in the 2020 session and go into law next summer. But what are the details of decriminalization? What specific policy decisions should our lawmakers consider when drafting the decriminalization legislation? Failing to consider these issues in advance of the legislative session could usher in a repeat of the shambolic attempt to legalize casino gambling in Virginia

The other 15. An important distinction needs to be drawn between the three common forms of marijuana reform in the U.S. — decriminalization, medical use and recreational legalization. Fifteen5 states have decriminalized, but not legalized, possession of small amounts of marijuana.  Eleven states (and 13 countries) have legalized possession of marijuana for recreational use.  Thirty-three states have implemented medical marijuana systems (low THC cannabinoid oil legalizations do not count as medical marijuana systems). As mentioned previously, Virginia is likely to join the ranks of states where decriminalization has occurred in 2020. As we approach that event, it is useful to look at the specifics of the 15 states that have decriminalized, but not legalized, possession of small amounts of marijuana.

Key questions and suggestions for Virginia (in blue). There are a finite number of key questions that must be answered by our lawmakers on the road to decriminalization.

Decriminalize or “de-jailify”?  Of the 15 states which have “decriminalized” marijuana, five have removed the possibility of jail time for a first offense while continuing to keep the offense itself a criminal act. In Minnesota, for example, possession of 42.5 grams of marijuana or less is a misdemeanor (i.e. criminal act) but has the maximum penalty of a $200 fine. In Mississippi the decriminalized first offense limit is 30 grams carrying a maximum fine of $250. It is a civil penalty not a criminal act. Virginia – decriminalize. Either this is a serious crime or it is not. Low penalties but a criminal record makes no sense.

First offense vs any offense? Some states like Nebraska only decriminalize the first offense of possessing marijuana. Other states, like Maryland, don’t distinguish between first and subsequent offenses. Some states, like Connecticut have a lower fine for the first offense than for subsequent offenses. Virginia – any offense. Unlike speeding (with its points system), simple possession does not endanger non-possessors. Keep getting caught, keep paying the fines.

Weight threshold?  Every state sets a weight threshold to distinguish between possession and possession with intent to distribute (PWID).  One state even has two tiers of possession – a civil penalty under 1/2 oz and a misdemeanor (possession not PWID) over 1/2 oz.  The majority of states draw the borderline between simple possession and PWID between 1/3 oz and 1.5 oz of marijuana.  Virginia – One ounce (28.35 g).  Why?  Suffice it to say ounces are what I remember being talked about as a personal stash from high school … “Ok Boomer”.

Penalty? The fine for decriminalized or “de-jailified” marijuana possession ranges from $50 to $500 with most states between $200 and $300. Virginia – $250. Mid-point of the decriminalized states.

Hash & Concentrates? Since marijuana decriminalization is really THC decriminalization some determination has to be made for non-leaf THC – hash and concentrates. Eight states have the same penalties for hash and concentrates as for leaf marijuana while seven have separate schedules for hash and concentrates. The same schedule for both is odd since hashish can be up to three times more potent than leaf marijuana and concentrates may be even stronger. Virginia – Must have a separate schedule with much lower weight thresholds for hash and concentrates. States that have failed to implement separate schedules probably failed to carefully consider the matter.

Paraphernalia? All states have laws against paraphernalia. Some states ban the possession of paraphernalia. All states ban its manufacture or sale. This makes for some odd law. In Hawaii, for example, you’ll pay a $150 fine for the possession of small amounts of leaf marijuana but face five years in jail for possession of paraphernalia. If the pot doesn’t get you the bong will. Virginia – civil penalties for possession of paraphernalia intended to consume personal dosages of marijuana. Other paraphernalia laws remain the same.

Miscellaneous? There are a variety of additional laws usually focused on possession near schools, in vehicles, etc. In Hawaii, discovery of marijuana in a vehicle may result in each occupant being charged with possession. In Mississippi any violation will result in a six-month driver’s license suspension. Virginia – escalating penalties for possession on or near school grounds. 

Rip’s Wrap. Decriminalization prior to legalization is almost certainly the path forward in Virginia with legalization potentially being years away. The interim period between decriminalization and legalization is a kind of legal adolescence. Selling is a felony but buying / possessing gets you a fine. No taxes are raised. Profits accrue to legalized states, illegal dealers and drug cartels.

As lawmakers draft the specifics of Virginia’s decriminalization laws they should remember the four main goals of such laws – reduce the government’s costs of enforcing simple possession violations, keep simple possession from going on a person’s criminal record, greatly reduce or end the racial inequalities of marijuana possession enforcement today and establish the ground work for the inevitable … medical marijuana and recreational marijuana legalization.

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6 responses to “Marijuana Decriminalization in Virginia: Issues and Recommendations for Regulators

  1. We do NOT need regulation in the manner of liquor distribution and sales, as practiced in our neighboring state, Maryland, with all the attendant corruption over who gets to put wine and liquor stores where, who gets the needless middle-man profits. And we do NOT need to imitate Maryland’s handling of later stages of legalization, such as the regulation of the limited rights granted to the lucky few allowed to grow it, again with attendant corruption over the process of awarding those rights. Find the right balance, Virginia.

    • You’ve jumped the gun a bit Acbar. This was an article about decriminalization, not legalization. Until a medical marijuana system is adopted there are no legal growers, distributors or sellers. However, how to implement a medical marijuana system would have to address all of your questions. Given that states generally go from decriminalization to medical marijuana to legality it’s actually the move from decriminalization to medical marijuana that is the most important step. More on that is a future article.

  2. Nice summary, Don. I think you are probably right–the GA will do something in this upcoming session. But, I don’t think it should. As you point out, there are some complex issues to sort out and a harried Session is not the place to do it. The GA should set up a special committee, ostensibly to handle the marijuana bills carried over, that can take the time to hammer out the details and get it right (or as right as it can, at this point). But, that is probably not going to happen either. The Democrats will be so full of themselves that they will want to do something.

    I used to be in favor of legalization, but now I am not so sure. There are too many indications that extensive use of marijuana may have serious mental health effects and there has not been enough study of it. Remember tobacco and how we thought that was harmless? https://www.newyorker.com/magazine/2019/01/14/is-marijuana-as-safe-as-we-think

    Be that as it may, if we are going to decriminalize it, why not just go to the logical end? If we don’t think its use is serious enough to be a misdemeanor, why make it illegal at all, i.e. with fines? Just make it legal. And, if it is legal to use it, why shouldn’t it be legal to sell it? Then, it would be on the same level as tobacco, which we know is dangerous to use. The major questions would be: legal age of use and how much to tax it.

    • The GA cannot act quickly enough. I personally don’t want to spend another penny incarcerating someone for possession of a plant.

      There doesn’t need to be a study. Ample time has already been spent (this idea isn’t out of the blue, ya know). Oklahoma, of all places, is already acting on this. Marijuana has been decriminalized in a handful of states for a decade. Let’s not pretend it’s all a big unknown. Tepid action is robbing people of their freedom and robbing us of tax dollars. Everyone knows that it will be decriminalized at the federal level before 2030 anyway.

      • I agree. Decriminalization is pretty straight forward. It can create some bizarre situations (see my post below) but it’s not hard to implement. No new money is changing hands so crony capitalists won’t see the need to engage.

        Once we move on to medical marijuana and legalized recreational marijuana – everything changes. Medical marijuana is operative in 33 states so there are plenty of examples to review. However, it will be lost on nobody that those who have the right to grow medical marijuana or distribute medical marijuana or sell it to people with a doctor’s referral will have a huge advantage when the legalization occurs. The best the General Assembly could do would be to enact the law in 2020 with a re-enactment clause for 2021. In the meantime commission a JLARC study. However, unlike the casino gambling bill … make no hard and fast decisions in the 2020 legislation and outline a timeframe and plan for implementation that those who want to legally invest in this new industry have some certainty as to how that will all work.

    • I think decriminalization can be effectively handled in-session. Growers, distributors, sellers are still committing crimes. Decriminalization doesn’t directly affect them. There is no taxation. I think they should pass decriminalization but then undertake a study of medical marijuana in Virginia – a much more complex change.

      People have been smoking marijuana for a long time. Broadly in the US since the 1960s. If smoking dope were causing some significant increase in very serious or deadly diseases I think that would have been detected by now. Having said that, I am sure that long term smoking of anything is bad for your health. Smoking tobacco, for example. Tobacco is not only legal in Virginia … we also choose to tax cigarettes at the second lowest rate in the country. And we know for sure that long term use of tobacco increases the odds of developing fatal diseases.

      However, the two best reasons for legalization are 1) a vast and growing majority of Americans support legalization and 2) our efforts to prevent marijuana use by making it illegal have failed. Utterly and truly failed.

      I agree that decriminalization makes for awkward behavior. Let’s say DC convinces Congress to allow a regulated retail market for selling marijuana in DC. Let’s say the General Assembly decriminalizes. There would be a steady flow of Virginians to DC dispensaries. The transaction of legally selling marijuana in DC to a Virginia resident would presumably be completely legal. Possessing that marijuana in Virginia would be a civil penalty. I suppose transporting small amounts of legal marijuana across state lines would be some kind of federal offense but I assign a 5% chance that the feds would even try to enforce that law (for small amounts of marijuana). If the events that I described do unfold … marijuana would have been effectively legalized through decriminalization. What’s the point?

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