Lawmakers in the Virginia House and Senate voted Saturday to legalize recreational marijuana beginning in 2024, but opted to delay key decisions about how the new marketplace will operate until next year.
“This moves us in a direction to strike down and address institutional barriers, over policing, over arrests and over convictions of African Americans, who do not use marijuana at a higher rate than our White counterparts, but we seem to get the brunt of criminal convictions,” said House Majority Leader Charniele Herring, citing a state study that found Black Virginians are more than three times more likely than White residents to be arrested for marijuana possession.
The bill, which Gov. Ralph Northam made a priority of his final year in office, is poised to make Virginia the first state in the South to end its prohibition on the drug and only the second in the country to legalize marijuana through legislative action rather than a referendum.
However, the legislation was received as a disappointment by some advocates and Democratic lawmakers, eight of whom declined to vote on the bill when it came before the House of Delegates, passing 47-44. It passed the Senate 20-19, with one Democrat, Sen. Chap Petersen, D-Fairfax, voting against it. Republicans in both chambers unanimously opposed the measure or abstained.
The agreement reached by lawmakers establishes a three-year runway before sales and possession would be legalized — time the bill’s sponsors said was necessary to establish a new independent agency, the Virginia Cannabis Control Authority, and develop regulations.
The House and Senate finalized the legislation just hours before gaveling out of session for the year. The product of tense negotiations this week, it was at times unclear whether Democratic majorities in the two chambers would be able to reach a consensus despite Northam’s backing and strong public support.
The final agreement hinged on the House’s acceptance of language sought by the Senate that will delay many decisions about how the new retail marketplace will operate until next year, according to multiple sources familiar with the negotiations.
Lawmakers also agreed to delay finalizing decisions about new criminal penalties surrounding the drug, such as underage possession and unlicensed manufacture and sale.
Nonetheless, even with no further legislative action, the bill will legalize the possession of an ounce or less by adults 21 or older beginning in 2024. Retail sales would also legally be allowed beginning Jan. 1, 2024, though without further action, no businesses would be licensed to manufacture and sell the drug.
It will also allow Northam’s administration to begin standing up the new cannabis authority on July 1, which House lawmakers viewed as a key step to avoid delaying the beginning of retail sales beyond 2024.
The approach disappointed civil rights advocates, who argued that it makes no sense to keep the drug illegal for three years after voting to end prohibition. On Saturday, after details of the agreement began to emerge from closed conference negotiations, they urged lawmakers to vote the bill down, saying it would needlessly perpetuate the disparate enforcement of marijuana laws against Black people that lawmakers said they wanted to stop.
“What’s the point of legalization if people, disproportionately Black & Brown people, continue to be caught in the system needlessly for what will soon be legal?” wrote the ACLU of Virginia in a tweet.
The Senate had pursued language that would have legalized possession — currently punishable by a $25 fine — beginning July 1. But it was stripped out early in negotiations with the House, whose members worried that repealing criminal penalties before legal sales are permitted would encourage the black market.
Advocates also took aim at place-holder language that would make it illegal to have an open container of marijuana in the passenger compartment of a vehicle, a provision proposed by Northam’s administration in an effort to make it easier to pursue driving under the influence charges. (Searches by police officers based on the smell of marijuana would continue to be barred under a law passed last year.)
“This bill does not advance the cause of equal justice or racial justice in Virginia,” wrote a coalition of progressive advocacy groups that included the ACLU, Marijuana Justice, Justice Forward and RISE for Youth. “It is the product of a closed-door legislative process that has prioritized the interests of recreational marijuana smokers over people and communities of color. The bill is a failure.”
Some lawmakers, particularly in the House, said they agreed. “Even the thought of business before justice is hard to stomach, knowing that some of my constituents are in jail right now and more may be sent to jail while we are establishing a regulatory authority for the business pieces,” said Del. Cia Price, D-Newport News, one of eight Democrats in the House who refrained from voting on the bill.
She said she hoped Northam would send the bill back to lawmakers with improvements, a sentiment several lawmakers in the House, including Herring, the bill’s patron, said they shared.
Other advocates, including Virginia NORML, the state chapter of the National Organization for the Reform Marijuana Laws, called the bill a historic step forward even as they acknowledged it remains a “work in progress.”
“In particular, we hope to expedite the timeline with which Virginia adults will no longer face either criminal or civil penalties for the personal possession and cultivation of cannabis,” said the organization’s director, Jenn Michelle Pedini.
The new criminal penalties, none of which will go into effect unless approved again next year by the General Assembly, would set a $25 fine for possession of more than an ounce, underage use and public consumption.
Possession of more than a pound would be subject to felony penalties. Illegal distribution would be punishable by a Class 1 or 2 felony.
Cultivation of up to four plants per household would be allowed, as would gifting the drug in quantities of up to an ounce.
Lawmakers will also have to vote again next year to finalize the regulatory structure. But as currently drafted, the rules would allow for limited vertical integration of marijuana businesses, permitting only existing medical marijuana facilities and micro-businesses to simultaneously hold licenses to cultivate, process and sell the drug.
The legislation maintains the nearly 30 percent tax rate on retail sales proposed by Northam, which would eventually generate an estimated $183 million in new state revenue every year, according to state estimates. Lawmakers are currently planning to split the money between pre-K programs in low-income localities, social equity programs and substance abuse and health initiatives.
The legislation retains an equity program aimed at giving early and preferential access to business licenses to people who “suffered outsized effects of the enforcement of prohibition.” The final language tightens eligibility requirements to only extend to people or family members of people arrested for marijuana crimes. It would also be open to people who graduated from a historically Black college or university in Virginia or live in areas that were subject to disproportionately high marijuana arrests or are deemed economically destressed based on U.S. census data.
Such applicants would get early access to licenses, application assistance and interest free business loans from the state.
Lawmakers agreed to allow local governments to bar retail sales within their borders, but only if voters approve the decision in a referendum held before the end of next year.
The assembly passed expungement provisions earlier in the week that will automatically seal past misdemeanor convictions. The legislation would allow people with more serious marijuana charges on their records to petition a judge to have the records sealed. People in jail would be eligible for resentencing.
Lawmakers in the Senate dropped a push to put a non-binding referendum on the ballot later this year asking voters to weigh in on whether marijuana should be legalized, which the House vigorously opposed, worrying it would confuse voters and potentially jeopardize their chances in competitive districts when their seats are up for election next year.
Most Republicans opposed the legislation. Sen. Ryan McDougle, R-Hanover, and House Minority Leader Todd Gilbert, R-Shenandoah, separately questioned the wisdom of agreeing to legalize marijuana with no guarantee lawmakers would be able to finalize regulations that would facilitate its eventual sales.
Herring responded that she viewed the outcome as unlikely.
“I just think that’s sort of ridiculous,” she said. “I don’t mean any disrespect. We’re just not going to allow that to happen.”
Northam’s spokeswoman, Alena Yarmosky, issued a statement calling the legislation a major step forward but acknowledging “a lot of work ahead”:
“Gov. Northam is grateful to the General Assembly for their hard work, and looks forward to continuing to improve this legislation,” she said.