Virginia legalized it, but people in prison on marijuana charges will stay there under new law

By: - April 23, 2021 12:02 am

Gov. Ralph Northam signed legislation legalizing marijuana in Virginia at a ceremony in April. (Ned Oliver/Virginia Mercury)

Marijuana will be legal to possess and grow in Virginia on July 1, but people serving jail and prison sentences related to the drug will remain behind bars under legislation passed by the General Assembly earlier this month.

Lawmakers had considered including a provision that would have granted resentencing hearings to people incarcerated on certain marijuana charges, but the language didn’t make it in the final bill — an outcome some lawmakers and advocates are calling a disappointment.

“That was urgent to me, because now we’re going to be in a situation where you’ve got people still sitting in jail for the very thing that we’ve already legalized,” said Sen. Louise Lucas, D-Portsmouth, who co-sponsored the legislation. “It makes no sense to me.”

Democrats who worked on the legislation, which lawmakers celebrated with a ceremonial bill signing Wednesday, said this week they were unable to reach an agreement on resentencing due to the complexity of the issue combined with last-minute nature of the amendments that sped legalization to this summer.

Some, including Lucas, also doubted Democrats would have been able to muster the votes to pass the measure this year. The party holds a with a 10-seat majority in the House but just a 21-19 advantage in the Senate.

Virginia’s legalization bill followed a long and winding path through the General Assembly, nearly failing in the final days of the legislative session amid disagreement between the House and Senate. The compromise the two chambers finally passed was widely panned for delaying the end of prohibition until 2024, when retail sales would begin.

Northam responded by sending the legislation back to lawmakers with amendments that sped legalization of simple possession to this summer and will allow people to grow up to four marijuana plants per household.

And while sales remain illegal until the regulated marketplace opens in 2024, his amendments significantly relaxed some criminal penalties surrounding the drug. People caught with more than the permitted ounce of marijuana but less than a pound will face a $25 civil infraction, an amount that under current law is subject to felony penalties.

People caught growing large numbers of plants will also face significantly lighter penalties, which range from a $25 fine to a misdemeanor, with felony penalties kicking in only for people caught growing 50 or more plants.

It’s unclear how many people are currently imprisoned on marijuana charges who would have faced lesser penalties under the new law, but data compiled by the Virginia Criminal Sentencing Commission suggests the number is not insignificant.

Over a two-year period ending July 1, 2020, just over 1,000 people were charged with distribution of more than a half ounce and less than five pounds of marijuana — a charge that is often brought based on possession of large amounts of marijuana, which will soon be subject only to minor penalties.

Of those 1,000 charges, half were sentenced to jail, serving a median sentence of three months. Another 17.5 percent were sentenced to prison, serving a median sentence of 1.7 years.

During the same time period, 40 people were charged with growing large amounts of marijuana. Half were given six-month jail sentences, but 7.5 percent were sentenced to a median of 10 years in prison.

Sens. Jenn McClellan, Barbara Favola, Adam Ebbin and Louise Lucas listen as Gov. Ralph Northam speaks during a ceremonial bill signing Wednesday. (Ned Oliver/Virginia Mercury)

Sen. Scott Surovell, D-Farifax, and Del. Don Scott, D-Portsmouth, both made a last-minute push to include resentencing provisions in the bill when it became clear Northam planned to hand down amendments moving legalization up to this summer.

But at that point, they said it was too late.

Northam had included language granting resentencing hearings in his initial legalization proposal to people imprisoned on marijuana charges as long as they hadn’t been caught with more than five pounds or sold it to a child. At the hearings, a judge could consider “circumstances in mitigation of the offense, including the legalization of marijuana.”

But lawmakers in both the House and Senate, believing marijuana would not be legalized until 2024 at the earliest, spent almost no time discussing it during the session, instead focusing on provisions governing how marijuana would eventually be sold, regulated and taxed.

“The discussion didn’t arise until the very end of our conversations and at that point, we didn’t really have a lot of time to look into it,” Surovell said, citing uncertainty about the potential cost of the resentencing hearings, which he said would require the state to conduct pre-sentence reports and review by local prosecutors. “Just given that it hadn’t really been publicly vetted very carefully, I think there was concern about pulling the trigger on it without knowing the full implications.”

Advocates have said they were disappointed criminal law seemed to take a backseat to commercial considerations during debate among lawmakers.

Chelsea Higgs Wise, the director of the civil rights group Marijuana Justice, said that focus is reflected in the failure to address resentencing. She said that during the legislative session, she struggled to get the attention of lawmakers working on the bill.

Jenn Michelle Pedini, executive director of Virginia NORML, the state chapter of the National Organization for the Reform Marijuana Laws, called the failure to address resentencing unfortunate.

“How ‘complicated and expensive’ is it to continue the incarceration of these individuals for a substance the state has decided is now legal?” they asked.

Northam’s administration said the governor was simply following lawmakers’ lead when he didn’t include resentencing in the amendments he handed down, but he encouraged action on the issue next year. He also noted the bill includes broad provisions that within the next five years will begin to automatically seal records of past misdemeanor marijuana charges and allow people charged with more serious offenses to petition a judge to have them expunged.

“We didn’t get that across the finish line this year, but we’ve got session coming up in 2022, and I suspect that’ll be an issue that’s on the table,” Northam said. “This is a reason that we wanted to move forward the date of legalization, because why should we be arresting, why should we be penalizing people — ruining, literally, their lives, for something that’s going to be legal.”

Scott, who works as a lawyer in Portsmouth, said the issue will be a focus for him. Speaking before Northam’s bill signing ceremony Wednesday, he said he had been in court just that morning representing a client sentenced to 45 days in jail for possession with intent to distribute marijuana.

“These charges are going to continue to persist over the next couple years and we need to make sure we remedy it for people who are serving time,” he said.

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association. Contact him at [email protected]

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