Del. Don Scott, D-Portsmouth, said it wasn’t just a pungent odor that struck him during a recent visit to the city’s newly opened medical marijuana dispensary.
“I saw all that marijuana and I was looking over my shoulder waiting on the feds to run in and get us all because there was so much cannabis in there,” said Scott, a lawyer, who contrasted the scene to a court hearing three days later where he witnessed “a young brother get sentenced to five years for possession with intent to distribute marijuana” — a disparate approach to the drug he called absurd and hypocritical.
As lawmakers prepare to take up proposals to legalize recreational marijuana, questions about how to address past racial inequities and prevent new ones from cropping up in a legalized marketplace have figured prominently in early discussions.
Democrats who back legalization — including Gov. Ralph Northam, who endorsed the concept last month — have framed it as a matter of racial justice, noting the state’s own statistics show Black residents have been 3.5 times more likely to be arrested for simple possession than White residents despite the two groups using the drug at the same rates.
Broadly, the discussions have touched on three main areas: How the state should address past criminal convictions, what steps the state should take to make sure Black entrepreneurs have a chance to make money in the legal marketplace and how the state should spend the estimated $300 million in annual new tax revenue that market is expected to generate.
On past criminal charges, there’s already a push among lawmakers and advocates to automatically expunge past criminal convictions for simple possession — an effort they say is important to reduce barriers the records can pose to employment, housing and educational opportunities.
The state took a step in that direction when it decriminalized small amounts of marijuana earlier this year, sealing past records in the criminal background check system maintained by the Virginia State Police and prohibiting most employers, landlords and schools from inquiring about past convictions. Automatically expunging past records would go further, making court records documenting past convictions inaccessible without a court order.
Lawmakers have long been at odds on proposals to expand the state’s expungement laws and a much broader automatic expungement proposal died in the Senate during a special legislative session earlier this year. But state legislative analysts said a one-time expungement proposal would be much simpler to execute than a rolling program and prominent Democratic lawmakers in both chambers have said they consider automatic expungement of past possession charges a baseline for any legalization legislation. Merely allowing people with past convictions to petition for expungements, an approach taken in several states that have already legalized marijuana, would have a much more limited impact, they argue.
“If marijuana possession is now legal, then why should your ability to clean the slate be dependent on your ability to hire a lawyer and pay a fee?” said Sen. Jennifer McClellan, D-Richmond, who carried legislation earlier this year that set studies in motion that are guiding the current debate.
It remains to be seen whether or how lawmakers address past marijuana convictions for more serious charges, such as distribution, which will remain illegal outside of licensed dispensaries, although potentially with reduced consequences.
McClellan said she thought those crimes were more likely to be addressed as a part of the broader ongoing debate surrounding expungement laws. Scott, meanwhile, called the issue urgent.
“We need to address possession with intent and people serving time for those crimes — they need to come home right now. And that can happen,” he said, speaking with House Majority Leader Charniele Herring last week during a forum on the issue organized by the Charlottesville-based Tom Tom Foundation and Virginia NORML, the state chapter of the National Organization for the Reform Marijuana Laws.
Likewise, Chelsea Higgs Wise, who leads the group Marijuana Justice, said plans to address past convictions should be lawmaker’s primary focus, a process she said should include resentencing people serving time or paying fines for distribution charges. “I really want to emphasize that we should not even be thinking about our commercial market until we have a solid plan for addressing the individuals who were truly harmed by biased enforcement of marijuana prohibition,” she said.
While there appears to be support for expungement for at least some past marijuana crimes, lawmakers are less definite when they talk about how to spend new tax revenue and how to encourage diversity in the new commercial marketplace.
Legislative analysts cited a 2017 survey of diversity in the marijuana industry that found 80 percent of owners and founders were White.
Herring and Scott both said they want to see at least some steps to ensure minority participation in the marketplace. Asked during the forum what a successful legalization program would look like, Herring said, “I would like to see participants in the market who have had previous convictions.”
Scott agreed. “I want to see some folks become very wealthy,” he said. “If there’s a $1.8 billion market, and we legalize it, we’re talking about a lot of money for a lot of communities and I’m hopeful people who have been hit with the stigma can get hit with the stigma of being a millionaire now.”
Reports recently released by legislative auditors and a work group assembled by Northam’s administration lay out a range of options, including priority access to commercial licenses, mentorship programs and a fund to help finance startup businesses. But they note that limiting those incentives on the basis of race would likely violate state law, instead suggesting targeting historically impacted communities by making the aid available to people with past convictions on their records and who reside in areas that had faced disproportionate enforcement of marijuana laws.
Paul McClean, the founder of the Virginia Minority Cannabis Coalition, said access to startup capital will be especially important because Black business owners often don’t have access to the same network of potential investors as White entrepreneurs — something that will be especially important in an industry where banks are reluctant or unable to offer business loans.
“You’ll need some kind of start-up capital,” he said, speaking at last week’s forum with Scott and Herring. He also emphasized the importance of support services to help minority business owners navigate the licensing process, a point also emphasized by McClellan.
“We’re in the process of figuring that out in the next couple of weeks,” she said, “but we need to make sure, in part, that it’s not just the people who are currently in the pipeline with medical cannabis licenses have a leg up on everybody else, which we’ve seen happen in other states.”
And then there’s the money debate. In its report on the subject, the General Assembly’s Joint Legislative Audit Review Commission observed it will be tempting for lawmakers to plow the new tax revenues into the state’s general fund or dedicate it broadly to areas like education, but that in the context of the state’s multi-billion-dollar budget, it would have a more significant impact if dedicated more narrowly by, for instance, earmarking it for high-poverty school districts.
Higgs Wise called for most of the new revenue to be directed back into the communities most harmed by disproportionate enforcement of drug laws. In particular, she said she hopes lawmakers will empower local communities to decide how to spend the money by establishing community boards that can make granting decisions.
Del. Lee Carter, D-Manassas, issued an early call to use the money to fund a state-level reparations program. “There’s a wide array of ways to help make amends for that, everything from a social wealth fund to investments in community owned enterprises to investments in education and infrastructure,” he said.
McClellan said she and other lawmakers are still discussing how to spend money but said she wouldn’t oppose directing the new tax revenue to the state’s general fund if it freed up money for other needs.
“These conversations are ongoing, but I will be looking at how we spend the tax revenue on reinvesting in these communities and providing restitution in these communities,” she said.
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