Photo credit: Snopes
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.
