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Virginia Lawmakers Untangle the Criminal Justice Piece of Marijuana Legalization

Marijuana plant
Adult-use marijuana is likely to be legalized in Virginia this year, but some sticking points still need to be worked out before that can happen. (Photo: Alex Scribner/VPM News)

State lawmakers are moving at breakneck speed to legalize recreational marijuana in Virginia and provide a clean slate for thousands of people previously convicted of marijuana offenses. 

The proposals now before the General Assembly are lengthy and complex and will likely continue to be finessed over the coming weeks before reaching Governor Ralph Northam’s desk. Although law enforcement groups largely oppose legalization, some form of the legislation will likely pass, and advocates say the process has been thorough.

“I want everyone to, at least, feel good in the regard that Virginia is the single most prepared state in the history of any state to undertake a legislative or referendum initiative to legalize the responsible use of cannabis by adults,” said Jenn Michell Pedini with Virginia Norml. 

Lawmakers, relying on a battery of research, are promising to focus on social equity, racial justice and repairing harm caused by marijuana prohibition and the “war on drugs.” Proponents of legalization say they are getting it mostly right. 

“I’m really happy that lawmakers are moving forward with taking this on and really do hope that they continue to hear us,” said Ashna Khanna, legislative director of the ACLU of Virginia. And we don’t make the same mistakes that other states have and we do what’s right for Virginia.” 

Northam’s administration expects the regulatory framework for the selling and buying of marijuana will take up to two years. But the legalization of adult, recreational marijuana use will probably happen as soon as July 1. 

“It’s going to take time to set up but we can’t risk more people getting caught up into the system for acting in ways that would be legal soon,” Khanna said. 

The proposals under consideration would permit people over the age of 21 to legally possess up to an ounce of marijuana. People under the age of 21, however, would face a $25 civil penalty and mandated substance abuse treatment. Those who are under the age of 18 would face additional penalties in the juvenile court system. 

Some civil and criminal penalties would still exist for people who possess large quantities or attempt to sell marijuana without a license. 

In 2018, Marijuana arrests in Virginia were the highest they’d been in 20 years, accelerating the push to loosen criminal penalties. A majority of Virginians support the legalization of cannabis for adult use, according to a new poll from Christopher Newport University’s Wason Center for Civic Leadership. 

Both bills provide some path for people who were previously convicted of marijuana-related charges to have their records thrown out. But it could be months or years after marijuana is legalized due to Virginia’s outdated record-keeping systems 

“For most people who have most types of marijuana convictions, there is going to be relief coming down the pike,” said Bryan Kennedy, a Northern Virginia public defender and director of the group Justice Forward Virginia

The House bill provides for the automatic expungement of those charges. The Senate bill provides for a combination of automatic and petition-based expungement - meaning some people would have to go to court and ask a judge to scrub their record. 

Kennedy said petition-based expungement is a problem, because it can be an onerous and expensive legal process.  

“When we’re legalizing it and most people don’t think people should be punished for having possessed it previously,” we shouldn’t make it hard to clear the record, Kennedy said. “If we are agreeing it’s legal now, that’s creating a lot of work for people to get that done when everyone agrees it’s something that should be done.”

For people who were convicted of having large quantities of marijuana or selling it to minors, they may not be eligible for expungement at all.  

Underage users would face stiffer punishments and potential involvement in the juvenile court system. Right now, both bills require people under the age of 21 who are caught with marijuana to pay a $25 fine and undergo drug treatment. 

“That’s going to lead to a lot of people being put on probation, who probably wouldn’t have been on probation before,” Kennedy said. “Because just like most people who get caught drinking once when they’re college-age or high school-age, don’t need alcohol treatment and probation, most people probably won’t need that for a single marijuana possession either.”

Kennedy said judges should have flexibility on imposing treatment.

Some lawmakers echoed those concerns during a House Courts of Justice Committee last weekend. 

“I don't think we should be really focusing a lot of our energies on, how do we continue to penalize and punish people for marijuana use,” said Del. Don Scott of Portsmouth. 

The House bill previously included a provision that required schools to expel students who were caught with marijuana. Scott said the state should absolutely be concerned about underage use, but not punitive. 

Scott said, ”We have to understand, don't be naive. It's happening already. We have a $1.8 billion market. Us passing this bill or not, is not going to stop young people from using marijuana.”

Several lawmakers asked, how should the state address the issue? 

Pedini with Virginia Norml said the U.S. has had two decades of cannabis regulation to sort that out. 

“It is in fact evidence-based, [that] cannabis education is most greatly reducing youth consumption,” Pedini said. 

Marijuana has or will soon be legalized for recreational use in 15 states and the District of Columbia and the Northern Mariana Islands. Additionally, 16 states, Guam, and the Virgin Islands have decriminalized the possession of small amounts of marijuana for personal use.

Map of U.S.
A map showing the legal status of recreational marijuana in the 50 states and the District of Columbia. In two states, New Jersey and South Dakota, voters approved legalization during last year's general election, but laws have yet to be enacted.

Law enforcement groups largely oppose the legalization of marijuana. Dana Schrad with the Virginia Association of Chiefs of Police said the organization is especially concerned about road safety and whether law enforcement will have the tools to enforce impaired driving laws. 

“I think that the General Assembly is challenged to try to sort of take this legislation in a short session like this and really grasp the impact of what legalization will do in the Commonwealth of Virginia.”

The state decriminalized small amounts of marijuana last year. Previously, simple possession of marijuana was punishable by a $500 fine and up to 30 days in jail. It was reduced to a $25 civil penalty.