Virginia Decriminalizes Marijuana

Governor Ralph Northam recently approved landmark legislation decriminalizing the possession of marijuana in Virginia. Possession of small amounts of marijuana will no longer be punishable with jail time when the legislation takes effect on July 1, 2020. This will make Virginia the 26th state either to decriminalize the drug or to legalize its recreational use by adults. This act means approximately 30,000 people every year will no longer be branded as criminals, leaving them with a permanent criminal charge on their records.

The bill to decriminalize possession had bipartisan support in both Virginia chambers, and passed the House on a 56-36 vote and the Senate on a vote of 27-12.

Under existing law, possession of up to one half-ounce of marijuana is considered a Class 1 Misdemeanor, and a violation that is punishable by up to 30 days in jail, along with a maximum fine of $500. Possession of hash and other cannabis concentrates is currently punishable as a felony. Even though hefty fines and driver’s license suspensions are more common in actual practice than jail time, one State Crime Commission study in July 2017 showed that 127 people were then being held in custody solely on a marijuana charge.

The new legislation, however, is not the same thing as “legalization” of marijuana. Decriminalization means that penalties involving jail or prison time have been eliminated. Only a fine remains in place. The sale of marijuana and its products will remain a criminal offense. True legalization would mean that all penalties for marijuana possession would be removed, and sales would typically be permitted. State law may place restrictions on such sales, which include licensing, taxation, or other administrative involvement. 

Pursuant to legislation, marijuana remains in this quasi-illegal state. A violation of the law will be treated like a minor traffic violation. There will be a civil fine of $25 for possession. This is for up to an ounce of the marijuana plant itself or products derived from it, which include hash and oil concentrates. The legislation will also limit access to some records relating to past and future charges for possession. The new law also prohibits employers and educational institutions from inquiring about prior violations. The legislation does, however, contain exceptions that will allow law enforcement agencies access to such information. The information continues to appear in the court’s public online database.

Northam it made clear, before the recent legislative session began, that he doesn’t yet support full legalization of marijuana, and House lawmakers rejected legalization proposals even before they reached the floor. But both House and Senate members have indicated that they will study legalization proposals and take them up again next session.

Many advocacy groups, including the ACLU of Virginia and Virginia Marijuana Justice, initially pressed lawmakers to legalize marijuana fully this year. Those groups argue that disproportionate enforcement based on race or ethnicity will continue to take place even after decriminalization, albeit with penalties that will be less Draconian than under current law. Advocates of legalization also are concerned that decriminalization keeps in place bans on selling marijuana. This means that even medical users would not have any legal source. Criminal organizations, therefore, will still have a source of revenue, and will use that money for their other, perhaps more violent, operations around the world. Those groups also say that fines, while less punitive than jail time, will still cause problems due to the fact that such fines may be applied in a racially-discriminatory manner. At $25, it seems like a minor problem at best.

Marijuana arrests in 2018 (the most recent year for which full information is available) had reached the highest level in at least 20 years. Law enforcement agencies around the state reported almost 29,000 arrests. Lawmakers behind the new act say that decriminalization is an important step in addressing the disproportionate enforcement of existing marijuana laws on disadvantaged residents. Advocates claim that the disparity in arrests cannot easily be explained without reference to bias. This disparity had already led a few local prosecutors to take matters into their own hands and adopt blanket-dismissal policies. Judges, however, have refused to go along with these policies.

Eleven states and the District of Columbia have legalized marijuana, although Vermont and DC do not allow legal sales of the drug. Sixteen other states, now including Virginia, have decriminalized pot possession.

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