Virginia Likely to Avoid “Marijuana Legalization Trap” in 2020

By DJ Rippert

Reefer madness. Virginia is notably lagging most other states in marijuana reform. Across America recreational marijuana is legal for adults in 11 states and legal for medical use in 33 states. Twenty-five states have decriminalized the possession of small amounts of marijuana. In Virginia marijuana is illegal, criminalized and unavailable for medical use. Yet change is blowing like smoke in the wind. As of today, there are six decriminalization bills pending in the General Assembly along with three bills for expungement of prior convictions, two legalization bills, and four bills to implement a medical marijuana regime in Virginia. Depending on which bills pass …  Virginia could be looking at a near-term marijuana environment much different than its prohibitionist past. However, there are some combinations of events that could lead The Old Dominion into unintended (and negative) consequences.

Roach trap. One likely outcome from the 2020 General Assembly session is that possession of small amounts of marijuana will be decriminalized while efforts to legalize the recreational and medical use of marijuana will fail. This could put Virginia in a very sub-optimal position if neighboring states legalize marijuana. Virginia is a small state bordered by five other states and the District of Columbia. A very high percentage of Virginians live within an easy drive of neighboring jurisdictions. If Virginia decriminalizes while neighboring states legalize, the result will be effective untaxed legalization in much of Virginia. A surge of Virginians will drive over various borders to bring back marijuana purchased legally elsewhere. Marijuana use would increase in Virginia while none of the financial benefits of legalization (via taxes) would accrue to Virginia. But how likely is it that neighboring states will legalize recreational marijuana in 2020?

Won’t you be my neighbor? Virginia has borders with Maryland, West Virginia, Kentucky, Tennessee, North Carolina and Washington DC. In order of likelihood to legalize in 2020 …

Washington, DC: Marijuana possession is already legal in DC. However, the U.S. Congress, since possession was legalized, has used riders to federal appropriations bills to make the retail sale of marijuana impossible in D.C. You can grow it, you can possess it, you can give it as a gift, but you cannot legally sell marijuana in D.C. This “nanny state” governance by the U.S. Congress of those they don’t represent (D.C. has no voting members of Congress) has been pushed purely by Republicans. Originally the rider was in the House appropriations bill. Once the Democrats took control of the House that rider was removed. However, Republicans put the same rider in the Senate version of the bill. Make no mistake –  if the D.C. City Council had the legal means to establish a retail marijuana operation in the District, there would be immediate action to do just that. However, the Republicans in Congress has effectively eliminated that possibility this year.

Maryland: The state Virginia’s plantation elite loves to hate. Maryland has decriminalized marijuana possession and implemented a fairly broad based medical marijuana regime. In 2019 laws were proposed to legalize cannabis in The Free State. Rather than pass the law Maryland’s legislature decided to “study the matter.” A task force was established last July and recently concluded that it would not have recommendations ready for the 2020 legislative session. The odds of legalized marijuana laws passing the Maryland legislature in 2020 are slim.

West Virginia: Cannabis is frequently described as West Virginia’s largest cash crop. The topography, temperature and humidity of West Virginia (and western and southwestern Virginia for that matter) are very conducive to growing marijuana. West Virginia passed medical marijuana laws in 2017, although implementation issues have retarded progress in developing a working medical marijuana regime. Opinions on legalization are mixed among West Virginia politicians with Gov Jim Justice firmly opposed. There is almost no likelihood of legalized recreational marijuana in West Virginia in 2020.

Kentucky, Tennessee, North Carolina: North Carolina effectively decriminalized decades ago but has shown little appetite for marijuana reform in recent years. A Kentucky legalization bill has been proposed by Democratic Rep. Cluster Howard this session, but it is a long shot in the Republican-controlled state house. Tennessee has been locked in the same “proposed reform bills killed in committee” cycle as Virginia in recent years. This year will be no exception. Despite the fact that polls have found 81% of Tennesseans support legalizing marijuana to some degree the legislature has failed to act. Apparently, there are other clown shows besides the one in Richmond. No chance of Kentucky, Tennessee or North Carolina legalizing in 2020.

Small Wonder. Of all the states near (but not bordering) Virginia, Delaware is perhaps the most likely to legalize recreational marijuana in 2020. Delaware has already decriminalized marijuana and operates a medical marijuana program. Last year the Delaware House Revenue & Finance Committee signed off on a bill to legalize recreational marijuana by an 8 – 3 vote. The session ended before the bill came to a full vote. In prior years a majority in the House voted to legalize marijuana. However, in Delaware, any bill that deals with taxes and fees must pass a 60% supermajority vote. The legalization vote ended up between 50 and 60%. Is this the year Delaware will legalize adult use marijuana? I’d guess the odds at 2 – 1 in favor of legalization. And, as we learned with casinos, when Delaware leads … Maryland follows. And as we learned after Maryland followed Delaware with casinos, Virginia will follow Maryland after Maryland follows Delaware. You get that?

Rip’s Wrap. Decriminalization, medical use and recreational legalization of marijuana are all inevitable in Virginia. The only question is when (and how many millions of dollars in forgone tax receipts are lost as we wait for the inevitable). Virginia will decriminalize this year and set about studying the possibility of legalizing marijuana for medical purposes. That study will be presented in the 2021 session and medical marijuana will be legalized in that session. Recreational legalization will follow fairly soon thereafter (2 – 3 years) since several of our neighbors will have legalized and even our general assembly can see the futility of Virginians legally buying marijuana in Maryland and then committing the equivalent infraction of a traffic ticket when it is smoked in Virginia. Under that scenario, large parts of Virginia have no effective deterrent for recreational marijuana use but all taxes go to Maryland (or other nearby legal states).

Once again the world is closing in on the plantation elite. Virginia – ten years behind the beat of the nation’s music.