An effort to legalize marijuana in Delaware is dead for the year due to disagreements among lawmakers over social equity funding.
The House sponsor, Rep. Edward Osienski (D), says he was caught off guard after being informed that his bill’s inclusion of a new fund to promote participation in the industry by communities most impacted by prohibition meant it would require 75 percent of legislators in the chamber to approve it.
Osienski attempted to fix the problem with an amendment that was introduced shortly before the measure was expected to go to the floor earlier this month, but that proposal was opposed by certain members of the Black Caucus, whose votes would be pivotal given the high threshold. The measure was then pulled from the calendar, with Osienski saying it would come back up after lawmakers had a chance to work out additional changes—but that never happened.
The session ends on Wednesday, and the the sponsor says it won’t be brought up by then.
Osienski told The Delaware New Journal that he is “sorry that it didn’t happen this year, but I think it’s going to be a better bill” once it’s further revised and reintroduced in 2022.
Two weeks ago, just hours before a bill that would legalize marijuana was scheduled for debate on the House floor, lawmakers announced they were postponing the vote. What happened?
— Delaware Online (@delawareonline) June 25, 2021
Olivia Naugle, legislative analyst for the Marijuana Policy Project, told Marijuana Moment that the “momentum for legalization is stronger than ever, both nationwide and in the mid-Atlantic region,” but it’s “unfortunate that Delaware will get left behind this year.”
“We hope lawmakers continue to work on the details, and make legalization a priority when they return in January 2022,” she said.
It appears likely that, as in other states that have been pursuing reform this session, language around social equity will be key in determining how the votes shake out.
“I was ready to vote yes on it until the amendment,” Rep. Rae Moore (D) told The News Journal. “A whole race of people have been criminalized for marijuana… You can’t pass this legislation and leave those people behind.”
“If we do this right, then maybe legalized marijuana in the state of Delaware won’t be overly white,” Black Caucus Chair Rep. Kendra Johnson (D) said. “Maybe it will truly be a melting pot.”
The state secretary of finance told Osienski about the 75 percent threshold back in March, according to The News Journal, but the lawmaker didn’t believe him until legislative counsel weighed in just days before the scheduled floor vote—resulting in the scramble to file the amendment to cut out the creation of the equity fund. In response, several black lawmakers pushed back, with Rep. Nnamdi Chukwuocha (D) pulling his name from the legislation.
Even without the equity fund provision, the bill faced a serious challenge in the House to meet a different supermajority threshold of 60 percent due to its tax provisions.
It also ran up against Gov. John Carney (D), who called legalization a “bad idea” this month and declined to say what action he would take if a reform proposal was sent to his desk. Local media reported that his office was lobbying lawmakers to defeat the measure.
A spokesperson with the governor’s said Carney has “technical concerns with the legislation around finances and tax collection, public safety and public health,” and that “we have raised those issues with legislators.”
The Delaware State Troopers Association had also been lobbying against the proposal, with a representative saying in a letter to House lawmakers that the social equity fund would be “seemingly rewarding those for their past bad behavior.”
“We just don’t understand why convicted felons would have the opportunity, would have an added benefit to be able to get in for this business,” the organization said, according to The News Journal. “Because they’re convicted of a marijuana-related crime ignores the fact that that’s probably the crime they took the plea to, that the underlying offense was likely something more serious.”
Osienski found himself simultaneously trying to appease black lawmakers and progressives with robust equity and justice provisions while also working to bring in a few Republican votes to help meet the supermajority threshold.
Rep. Jeffrey Spiegelman (R), for example, indicated he was open to supporting legalization this year after previously voting for a prior version of the reform in 2018, but said he could not back what he argued was a “poorly written” bill this time that would “grant extra points in the scoring system based on the applicant’s demographics.”
“It goes even so far as to give preferential treatment to someone who has a prior conviction for the delivery of drugs,” he wrote in a Facebook post. “No business plan is required; But, if you have a criminal record for being a drug dealer, we will move you right to the front of the line to get a license over someone with a business plan and no prior convictions.”
Osienski now says he will be reworking plans for equity assistance between the adjournment of this session and the next one that begins in January, and he is eyeing the Division of Small Business as a potential vehicle.
As introduced this year, the legislation would have allowed adults 21 and older to purchase and possess up to one ounce of cannabis. Home cultivation would not have been permitted, however.
The proposal cleared its first committee in March and then, earlier this month, it moved through the House Appropriations Committee.
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HB 150 would have set a 15 percent sales tax on marijuana sales, with revenue covering the administrative costs of the adult-use program. The legislature would then decide how the remaining tax dollars should be appropriated.
The Delaware Marijuana Control Act Oversight Committee would have been established to regulate the market and issue business licenses.
Regulators would have been able to approve up to 30 retail business licenses, 30 manufacturing licenses, 60 cultivation licenses and five laboratory testing licenses for the first 16 months of implementation.
A legalization bill previously received majority support on the House floor in 2018, but it failed to receive the supermajority needed to pass.
Carney, for his part, is a rare type of Democratic governor who remains opposed to recreational cannabis legalization, and he publicly reiterated that position in recent weeks.
“We spend all this time and money to get people to stop smoking cigarettes and now we want to say it’s okay to just smoke marijuana recreationally,” Carney said. “Look, I don’t want to sound like a prude about it, I just don’t think it’s a good idea.”
Despite his wariness about adult-use legalization, Carney did sign two pieces of marijuana expungement legislation in recent years. In 2017 and 2018, a state task force met to discuss issues related to legalization, and the governor hosted a series of roundtable meetings about cannabis.
Carney’s predecessor approved a measure to decriminalize simple possession of cannabis in 2015.
Beyond the equity provisions, the legislation proved contentious in a different kind of way, as well.
In April, activists in the state mounted a boycott against four medical cannabis operators after representatives of those companies testified in opposition to the adult-use legalization bill during its March committee hearing.
An analysis from State Auditor Kathy McGuiness (D) released in January found that Delaware could generate upwards of $43 million annually in revenue from regulating marijuana and imposing a 20 percent excise tax. The legal market could also create more than 1,000 new jobs over five years if the policy is enacted, according to the report.
Photo courtesy of Philip Steffan.