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Delaware’s Democratic Governor Vetoes Marijuana Legalization Bill, But Lawmakers Have Votes To Override

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The Democratic governor of Delaware announced on Tuesday that he has vetoed a bill to legalize marijuana that the legislature sent to his desk earlier this month.

It was no secret that Gov. John Carney (D) wasn’t keen on legalization, despite the issue’s popularity especially within his own party. But advocates were holding out hope that he would at least allow the simple measure to legalize possession and sharing of cannabis for adults 21 and older to become law.

In a statement, the governor said that he supports allowing people to access cannabis for medical purposes and feels that “individuals should not be imprisoned solely for the possession and private use of a small amount of marijuana.” But he doesn’t believe Delaware should go beyond its current policies.

“I do not believe that promoting or expanding the use of recreational marijuana is in the best interests of the state of Delaware, especially our young people,” he said. “Questions about the long-term health and economic impacts of recreational marijuana use, as well as serious law enforcement concerns, remain unresolved.”

The legislature could still override the governor’s veto of HB 371, which is sponsored by Rep. Ed Osienski (D), as it’s already received more than three-fifths of the vote in both chambers that would be required to overrule Carney’s decision.

“I respect the Legislative Branch’s role in this process, and I understand that some hold a different view on this issue,” the governor said. “However, I have been clear about my position since before I took office, and I have articulated my concerns many times.”

Osienski also sponsored a complementary bill to set up regulations for an adult-use cannabis market that advanced through the committee process alongside HB 371, only to be narrowly defeated in the House last week by one vote. Under a procedural maneuver that the sponsor executed, that measure could be brought back up for another vote and could pass since one of its supporters was absent for the prior roll call.

“More than 60 percent of Delawareans support the legalization of marijuana for adult recreational use. Earlier this month, more than 60 percent of the General Assembly voted in favor of ending the prohibition against possession of a personal use quantity of marijuana,” the lawmaker said in response to the veto announcement on Tuesday.

“Unfortunately, the governor has chosen to ignore the will of residents and a bipartisan super-majority of the General Assembly by vetoing HB 371,” he said. “I’m deeply disappointed in his decision, especially since he could have allowed the bill to become law without his signature, which would have preserved both his personal opposition and the will of the residents and legislators. I will review what options are available and decide on any next steps at a later time.”

“Vetoing HB 371 will not stop people from obtaining and consuming marijuana. It simply means they could face civil penalties for possession. We have to look no further than New Jersey to see how a new industry can create jobs and generate revenue—sales reached nearly $2 million on its first day. Until we establish a similar market in Delaware, people will continue to obtain marijuana illegally here through the illicit market or send tax revenue across the Delaware Memorial Bridge to New Jersey.”

Osienski made the calculated decision to break up the measures after an earlier proposal that included both components was rejected in the House because it also failed to get a required three-fifths majority. Because the simple possession bill did not deal with revenue-raising, it only needed a simple majority but still cleared both chambers with supermajority support.

Carney made his first comments on the legalization legislation last week, saying that he agrees that using cannabis shouldn’t be a “criminal offense,” but he still signaled that he still had concerns with the policy change and declined to say at the time whether he intended to sign either measure.

Olivia Naugle, a senior policy analyst with the Marijuana Policy Project, called the veto a “true injustice.”

“This important legislation would dramatically reduce the number of police interactions, searches, and citations for cannabis possession in Delaware,” she said in a press release. “We know cannabis laws are unequally enforced, and it is Black Delawareans who are disproportionately stopped, searched, and penalized for cannabis, or for the supposed smell of cannabis.”

Here’s what Delaware’s HB 371 would do: 

The bill would amend state statute by eliminating penalties associated with the possession of up to one ounce of marijuana by adults 21 and older.

It would further add a section stipulating that adults 21 and older could share up to an ounce of cannabis “without remuneration.”

That section clarifies that marijuana could not be “gifted” as part of a contemporaneous “reciprocal transition” or if the gift is contingent on a separate transaction for non-cannabis products or services.

Here are the main provisions of the complementary HB 372: 

A marijuana commissioner would be appointed under the state Division of Alcohol and Tobacco Enforcement. The official would be tasked with regulating the industry and overseeing licensing of retailers, cultivators, manufacturers and laboratories.

Licenses would be granted through a scored, competitive process, with advantages given to those who pay workers a living wage, provide health insurance or meet certain other benchmarks.

After 19 months of the bill’s enactment, regulators would need to approve 30 retailer licenses, half of which would go to social equity applicants. Social equity applicants would be defined as entities majority-owned by people with past cannabis convictions or who live in an area disproportionately impacted by the drug war.

Those applicants would also be allotted one-third of the planned 60 cultivation licenses, one-third of manufacturing licenses and two of five licenses for testing laboratories. They would also qualify for reduced application and licensing fees as well as technical assistance from the state.

Retail marijuana sales would be subject to a 15 percent tax. No tax would be levied on medical cannabis sales.

Seven percent of the tax revenue would be used to support a new Justice Reinvestment Fund that would provide grants, services and other initiatives that focus on issues such as jail diversion, workforce development and technical assistance for people in communities that are economically disadvantaged and disproportionately impacted by the drug war. The money would also be used to help facilitate expungements.

Home cultivation for personal use would continue to be prohibited.

The legislation would allow individual municipalities to establish their own regulations for marijuana business operating times and locations, and they would also be allowed to ban cannabis companies altogether from their jurisdictions.

The bill provides explicit legal protections for state employees who work with the state-legal market. And it would also allow marijuana businesses to claim tax deductions at the state level—something they’re prohibited from doing at the federal level under a tax code known as 280E.

The tax-and-regulate bill is materially the same as the measure defeated in the state House in March.

Vermont lawmakers followed a similar approach to what Osienski pursued by first passing a noncommercial legalization bill in 2018 and then following that up with separate legislation to tax and regulate sales in 2020.

Notably, Delaware House Speaker Pete Schwartzkopf (D), who was the sole Democrat in the House who voted against the earlier comprehensive legalization bill, signaled that he might be inclined to support a bill providing a regulatory infrastructure for marijuana commerce if the chamber voted to legalize possession and sharing. While he still voted against HB 371 earlier this month, he supported the sales bill last week.

Possession of up to one ounce of marijuana is already currently decriminalized in the state, punishable by a civil fine and no threat of jail time under a law that was enacted in 2015. Carney signed a bill in 2019 that expanded the policy to apply to those under 21, too, though they face escalating civil penalties for subsequent offenses.

The governor said last year that he doesn’t support legalization in part because he believes marijuana can be a gateway drug to more dangerous illicit substances.

“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,” he said at the time. “Look, I don’t want to sound like a prude about it, I just don’t think it’s a good idea.”

The governor also said that his assessment of other states that have enacted legalization is that “it just doesn’t seem to me to be a very positive thing from the strength of the community, of the economy in their states. Is it the worst thing in the world? No, of course not.”

An even earlier legalization bill from Osienski cleared committee last year. However, disagreements over social equity provisions stalled that version, keeping it from the floor. At the time, Osienski pledged to bring a revised bill for the 2022 session that could earn broad enough support to pass.

When the sponsor’s earlier bill was being considered last year, he said he was caught off guard when he was informed that the inclusion of a social equity fund meant the bill would require 75 percent of legislators in the chamber to approve it.

The lawmaker tried to address the problem through an amendment, but some members of the Black Caucus opposed the changes, and the measure failed.

Osienski has worked with the Black Caucus in the ensuing months to build support and move toward more passable legislation. And a clear sign of the progress is that Reps. Rae Moore (D) and Nnamdi Chukwuocha (D) signed on as cosponsors to the since-rejected bill after pulling their support for the 2021 version over equity concerns. They’re also listed as cosponsors for the new HB 372.

In 2019, Osienski was the chief sponsor of a legalization bill that cleared a House committee but did not advance through the full chamber. That bill would have allowed medical cannabis dispensaries to begin selling marijuana to adults 21 and older while the rest of the adult-use industry was still preparing to launch, a provision that was removed from later versions.

Four of the state’s six medical marijuana companies came out publicly against that change and testified in opposition to last year’s bill. In response, Delaware activists mounted a boycott against those operators.

Portions of the most recent version of the cannabis regulations bills on expungements were removed this session, as they were made redundant by the enactment of separate legislation last year.

Meanwhile, despite his wariness about adult-use legalization, Carney did previously sign two pieces of marijuana expungement legislation. 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.

A legalization bill previously received majority support on the House floor in 2018, but it failed to receive the supermajority needed to pass.

An analysis from State Auditor Kathy McGuiness (D) released last year 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.

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