Lawmakers in Virginia are getting serious about cannabis legalization, building on a push that brought decriminalization to the state.
In April, Governor Ralph Northam signed SB 2, which reduces penalties for cannabis possession and allows for expungement of some criminal records related to cannabis. Following a cannabis summit hosted by state Attorney General Mark Herring last December, where policymakers convened to discuss Virginia’s path forward in legalizing adult-use cannabis, cannabis advocates were able to garner support for policy meant to address years of inequity that disproportionately targeted Black Virginians. In a state where just under 20% of the population is Black, 45.5% of first-time offense arrests were of Black residents.
Now, a study by the state’s Joint Legislative Audit and Review Commission is underway that will explore options and recommend strategies for legalizing cannabis sales for adult-use, including the creation of an agency called the Cannabis Control Commission, and for addressing the disproportionate effects of cannabis prohibition. The summary of the study bill includes an explicit call to assess policies in California, Massachusetts, and Illinois, and their “effectiveness in transferring economic prosperity to disproportionately affected areas.”
In a region of the United States not known for progressive policies, Attorney General Herring’s vocal support for criminal justice and cannabis law reform marks a shift. Cannabis Wire spoke with Attorney General Herring about the push for decriminalization, racial inequity in law enforcement, and what’s being discussed as legislators prepare for talks on adult-use legalization next legislative session, or perhaps even sooner. A special session is scheduled for August 18, and a representative from Herring’s office told Cannabis Wire they are “ready to help move that ball forward as soon as this special session, or whenever the General Assembly is ready to take up this important criminal justice reform.”
Cannabis Wire: We covered the cannabis summit that you held in December, and decriminalization has gone into effect. So, what’s next for cannabis in Virginia?
Attorney General Mark Herring: Well, first of all, it’s important to underscore the progress that we’ve made. I’ve continued to be frustrated to hear stories, particularly of young people who, because of an arrest or conviction for possession of a small amount of marijuana, are going to have a more limited future as a result, because of that thing on their record, limiting their education, their housing, just all kinds of future opportunities. I’m talking about just how bad the system was broken and not working in Virginia. And the weight of the system fell disproportionately on Black Virginians and people of color, and it needed to change.
And that’s why I led the call over a year ago for major reform of our cannabis laws, to not only decriminalize, but also address past convictions and move toward legal and regulated adult use. I continued to build momentum after our cannabis summit at the end of 2019, and continued to build through the General Assembly session, and we got decriminalization and also a legislative study that is now underway. This study is going to determine what the best infrastructure would be for Virginia, to be most effective and safest if we were to move to legalization. And so that’s really the next step, is to begin to have conversations about what a plan would look like for Virginia, and I hope that we will be able to take that and put a plan together and move towards legalization at the next regular General Assembly session in the beginning of 2021.
Cannabis Wire: Could you kind of take me through a timeline?
Herring: The legislative study is underway right now. It should be finished before the next General Assembly session starts in January of 2021. They will be making recommendations for programs and policies that will need to be implemented to provide infrastructure for legal and regulated adult use. One of the things that I’m really interested in, and encouraged by, is that they’re also going to be looking at Illinois’ law and taking into account the impact that marijuana prohibition has had on marginalized communities, and look at how Illinois has begun to rectify that using some of the revenue derived from legalization. So, I think it’s going to really go a long way toward laying out what infrastructure would be needed in Virginia, so that we can put the plan in place for next year.
Cannabis Wire: You said you were looking at Illinois. Are there any other other models that you’re drawing from? Are there any discussions happening about home grow or state-run sales?
Herring: When we did the cannabis summit, I thought it was important for, especially for, policy makers to hear from the policy makers and decision makers in some other states that had already done this so that we can learn from their experience. And a lot of the things that we took away from that was that there’s not necessarily a one right way or wrong way. But you do need to think through some of these questions in advance, so that you can have a smooth transition. And so there are discussions about whether to allow people to grow their own, or whether to have state stores, and there are also a couple of executive work groups to talk about some of these issues. And I think there are going to be other types of those working groups that will work with legislators and try to decide what’s the right path for Virginia as we move toward legalization.
Cannabis Wire: What are some hurdles or challenges that you anticipate to legalization?
Herring: It’s just keeping the momentum going and making sure that the policymakers are convened in order to have the conversations that we need to have to put the plan in place. And so I’m very optimistic and hopeful about where we’re headed. But we have to build on the momentum and not let people think, ‘oh, okay, we’ve decriminalized, there, we’re done.’ That’s just really the first step toward a path to addressing past convictions and getting legalization.
Cannabis Wire: SB 2 allows people to petition for expungement. How else would legalizing adult use cannabis address some of the additional social equity goals, and what else is being talked about in terms of approaching expungements?
Herring: I think, just as a matter of fairness and justice, we have to address past convictions better than we are right now. Right now, misdemeanor possession charges are sealed by the State Police. But we really should do more and remove them from the records completely. So that’s how I feel just as a matter of fairness, and again, I have approached it primarily from a criminal justice point of view. Getting that done, and legalization, even makes that case stronger. If it’s legal, then somebody shouldn’t have that hanging over them for the rest of their lives, for something that is now legal, so that will help build momentum to expunge those charges and convictions.
And I also think legalization advances equity concerns, because the numbers in Virginia show just how bad the problem was, overall. Arrests for marijuana more than tripled from around 9,000 in ‘99 to around 29,000 in 2018. And that’s the highest number of arrests ever recorded in Virginia. And about 90% of those arrests were for possession, and more than half were young people under the age of 24. So it was especially hard for young people, but also Black Virginians and people of color. The Virginia Crime Commission had found that African Americans comprise 46% of all first offense possession arrests from 2007 to 2016. And in Virginia, Black Virginians are about 20% of the overall population. So, a huge disparity, even though studies consistently show the rate of marijuana usage is about the same between Black Americans and white Americans.
So the social equity and racial equity concerns are real in Virginia, and that disparity cannot be discounted or ignored. It has been proven, and legalization will help address that in a couple of ways. While right now, as a result of the decriminalization, it’s a $25 fine. Oftentimes, that’s just the first start of an interaction with law enforcement. And there’s no reason why it even needs to happen at all. And then with legalization, depending upon how Virginia approaches it, there could be revenues that could be directed toward marginalized communities that have suffered especially hard due to marijuana prohibition. And so there are a number of ways equity issues could be addressed, depending on how Virginia decides to move forward, whether they have state run stores or licenses. If it licenses it, now, it’s going to be important to make sure that everyone has a fair opportunity for becoming a licensee.
Cannabis Wire: In the Joint Legislative Audit and Review Commission study, is there going to be any consideration of a banking infrastructure, some way to kind of grapple with the banking issue for cannabis businesses or entities?
Herring: I hope it at least touches on that because there will need to be an infrastructure to address that. If not, hopefully one of the working groups will.
Cannabis Wire: Any thoughts on what that might look like?
Herring: It’s probably too soon to tell, but it is definitely an issue that needs to be examined closely.
Cannabis Wire: How do you see COVID-19 affecting or maybe even disrupting some of these cannabis laws, reforms?
Herring: It shouldn’t. Obviously everyone is concerned about the public health crisis that we’re facing, as well as the economic crisis that has resulted from it. But Virginia’s cannabis laws have not been working for a long time. And we need to continue the progress that we’ve already started. We’ve shown that progress is possible here in Virginia, and we just need to keep the momentum going. And I don’t think that the health crisis or the economic crisis should slow it down, if anything. I would think we would continue the momentum.
Cannabis Wire: You said the study will presumably wrap up before January, and then after that, when do you think there will be a vote on legalization?
Herring: Well, it’s my hope that we’ll get one in the next legislative session. So it starts in early January. I’m sure there will be committee hearings a couple of months after that. And my hope is that the General Assembly will pass it before it adjourns. I will certainly be in there advocating as much as I possibly can for that to happen. This is long overdue.
Cannabis Wire: How could Virginia’s cannabis policy affect neighboring states?
Herring: We have shown that marked progressive reform is possible here in Virginia. And we need to continue forward on that path. We’ve been able to show that in all kinds of ways, including passing the Virginia Values Act, which helps provide LGBT protections in employment, housing and public accommodations. We have passed historic gun safety measures. And we can also lead the way in marijuana reform. And so other states around us, and certainly DC and Maryland, have some of those, but we are able to at least show other states around us that marked progressive reform is possible here in Virginia, and it’s possible in their states too.