Oregon made history when voters approved a ballot initiative to decriminalize possession of all drugs and expand access to treatment in November. Now, a number of other U.S. states could follow suit, with a New York lawmaker introducing a similar decriminalization bill last week and proposed legislation waiting in the wings in Washington State and California.
A newly proposed resolution in Virginia, meanwhile, would have state officials begin studying decriminalization models, such Oregon’s, that move away from a crime-control approach to drug use and instead emphasize public health.
“Such reforms have resulted in significant financial savings to such states,” the Virginia resolution says, “in both the adjudication of criminal cases and the reduced burden on jails and prisons.”
Many drug policy reform advocates and observers still see state legislatures as a less likely path to all-drug decriminalization than citizen initiatives, and indeed some influential backers are already setting their sights on 2022 ballots. But the efforts emerging in statehouses so far this year are an early indication that decriminalization is finding more traction with state lawmakers after an election in which voters approved every major state-level marijuana and drug reform measure put before them.
Here’s a rundown of some of the decriminalization proposals being considered as this year’s state legislative sessions get underway:
A bill introduced last week by Sen. Gustavo Rivera (D), S1284, would remove criminal penalties for possessing small amounts of any controlled substance and instead levy fines of $50.
“The purpose of this legislation is to save lives and to help transform New York’s approach to drug use from one based on criminalization and stigma to one based on science and compassion,” the bill says, “by eliminating criminal and civil penalties for the personal possession of controlled substances.”
Low-level possession would be changed from a class A misdemeanor to a violation punishable by a $50 fine. Someone caught with a small amount of drugs could also participate in what the bill describes as “a needs screening to identify health and other service needs.” If they completed the screening within 45 days, the fine would be waived.
The screening’s aim would be to “identify health and other service needs,” the bill says, “including but not limited to services that may address any problematic substance use and mental health conditions, lack of employment, housing, or food, and any need for civil legal services.”
As with Oregon’s decriminalization law, the goal of the New York bill is to deprioritize policing of personal drug use while also facilitating better access to treatment for individuals with substance use disorders.
“Treating substance use as a crime by arresting and incarcerating people for personal use offenses,” it says, “causes significant harm to individuals who use drugs by disrupting and further destablilzing their lives.”
Marijuana Moment is already tracking more than 200 cannabis and drug policy reform bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
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“For well over a century, even as the scientific understanding of substance use disorders as a medical condition has increased, New York and other states have continued to treat drug use as a moral failing and as a crime, thereby stigmatizing and incarcerating millions of people for having a disease,” Rivera, who chairs the Senate Health Committee, wrote in a sponsorship memo. “Such treatment stands in stark contrast to how society and government treat individuals suffering from other diseases, such as cancer or an anxiety disorder. While individuals with these other illnesses are usually seen as worthy of compassion, support, and medical care, those with an SUD are disparaged, criminalized, and treated as undeserving of assistance and compassion.”
Very honored to continue my role as Chair of the @NYSenate Health Committee. I will serve as a member of the committees on Finance, Mental Health, Alcoholism & Substance Abuse, Housing, Crime & Corrections, and Higher Education.
— Gustavo Rivera (@NYSenatorRivera) January 11, 2021
The bill would also establish a state drug decriminalization task force to “develop recommendations for reforming state laws, regulations and practices so that they align with the stated goal of treating substance use disorder as a disease, rather than a criminal behavior.”
Among the task force’s jobs would be to identify how much of a controlled substance is consistent with non-prescription use, which could be used to adjust possession limits. The body would also use data about the types of services people with drug use disorders “desire but cannot access,” as well as “barriers to existing services.”
The task force would consist of various political appointees, health and drug use experts, a prosecutor, a public defender and an array of other state officials or their designees. “Further,” the bill says, “appointees shall include people with prior drug convictions, individuals who have participated in a drug court program, individuals who have been formerly incarcerated, individuals impacted by the child welfare system, and representatives of organizations serving communities impacted by past federal and state drug policies.”
Additionally, S1284 would allow for the expungement of certain past drug convictions and remove certain drug accessories—specifically those “used for the purpose of injecting, ingesting, inhaling or otherwise introducing drugs into the human body”—from the state’s prohibited category of drug paraphernalia. Equipment used to produce or process controlled substances would still be prohibited.
Filed last Friday, the measure has been assigned to the Senate Codes Committee.
Advocates in Washington were originally hoping to put a decriminalization initiative on the state’s 2020 ballot, but the campaign’s signature-gathering effort was put on hold due to complications caused by the COVID-19 pandemic. Now the group behind the effort, Treatment First Washington, is hoping to put the proposal in front of lawmakers this legislative session.
In a public Zoom meeting last Thursday about the effort, affiliates of the group said they’ve been in talks with six specific House lawmakers—including Reps. Kirsten Harris-Talley, Lauren Davis, Joe Nguyen, Nicole Macri, Tarra Simmons and Frank Chopp, all Democrats—trying to finalize language of the bill and secure a sponsor.
“I was hoping by today that we would have sort of updated bill language and a specific bill number to share with this group, but it’s not quite ready,” Mark Cooke, an ACLU of Washington attorney and consultant for Treatment First Washington, said on the call. “We should have the bill language very soon.”
Cooke referred follow-up questions to Treatment First’s media contact, Christina Blocker, who did not answer Marijuana Moment’s questions about the status of the bill but indicated there would be a press event about the effort later this week.
Judging from the group’s past description of its proposal, the measure would largely resemble Oregon’s new decriminalization law. It would decriminalize possession of all drugs, replacing criminal penalties with a relatively small civil fine and giving people the option to participate in treatment instead of paying that fine. Like Oregon’s measure, the Washington proposal would also earmark tax revenue from the state’s legal cannabis system to fund the expansion of drug treatment services.
Marijuana in Washington is currently taxed at 37 percent, the highest state-level cannabis tax rate in the country. The tax brought the state nearly $470 million in fiscal year 2020, according to state regulators.
One difference from Oregon’s measure, the group said late last year, is that Washington’s decriminalization law would create a body, similar to the one envisioned in the New York bill, that would use community input and expert testimony to establish details such as possession limits. Oregon’s initiative used existing state law to set those thresholds.
The Washington proposal, however, could change considerably as advocates work to win broader support from lawmakers. The provision to pay for expanded treatment services with cannabis tax revenue, for example, may not fly with a legislature that’s come to rely on hundreds of millions of dollars in cannabis money to fund other government operations.
So far California lawmakers haven’t introduced a measure to decriminalize all drugs, although that’s not entirely out of the question. Given the state’s size, influence and history of leadership in the drug reform movement, advocacy groups are still exploring ways to put all-drug decriminalization on the legislative calendar this session.
“As far as California, that one has been a priority of ours,” Matt Sutton, director of media relations at Drug Policy Alliance (DPA), told Marijuana Moment this week, “and we have been working with the legislature to introduce something and will likely do so this session.”
Potentially complicating the effort to decriminalize all drugs in California—at least for the moment—is a forthcoming narrower decriminalization proposal from state Sen. Scott Wiener (D), who has said he plans to introduce legislation that would decriminalize only psychedelic drugs, such as psilocybin mushrooms, ibogaine and DMT.
Legislative language for the proposals isn’t yet available, but Sutton at DPA said the group is in contact with Wiener about how to coordinate the two prospective bills.
Virginia lawmakers are also working to get the state to begin considering drug decriminalization, although they’re setting out at a slower pace than the other states. A joint resolution introduced last week by Del. Sally Hudson (D), HJ 530, would task the state Crime Commission with studying alternative approaches to drug enforcement, “including decriminalization of the possession of substances.”
Language of the proposed resolution argues that “the War on Drugs has entailed overwhelming financial and societal costs, and the policy behind it does not reflect a modern understanding of substance use disorder as a disease or substance abuse as a public health problem.”
“Traditional legal interventions, including arrest and incarceration, have proven ineffective in treating addiction and promoting public health,” it continues, “requiring new approaches that emphasize treatment and rehabilitation over arrest and punishment.”
Under the proposal, the Virginia State Crime Commission would need to complete its assessment by November 30, 2021, and submit its findings at the start of the 2022 legislative session.
Just last year, Virginia lawmakers decriminalized marijuana, making possession of up to one ounce of cannabis punishable by a $25 fine with no threat of jail time and no criminal record—a law that took effect in July. Now, with the support of Gov. Ralph Northam (D), the legislature is expected to seriously consider legalizing marijuana in 2021.
Meanwhile, Oregon’s passage of Measure 110, last election’s major drug decriminalization measure, is already making an impact in the state. Last month the district attorney in Multnomah County, the state’s largest, announced that he would stop pursuing drug possession cases immediately, even though the law doesn’t officially take effect until February.
“The passage of Ballot Measure 110 sends a clear message of strong public support that drug use should be treated as a public health matter rather than a criminal justice matter,” District Attorney Mike Schmidt said in a press release.
Schmidt was the third Oregon DA to announce such a change, following prosecutors in Clackamas and Deschutes counties.
Under Oregon’s measure, simple drug possession will be treated as a civil infraction, punishable by a $100 fine and no jail time. The fine can be waived if an individual can demonstrate to a court that they’ve completed a substance misuse assessment.
Local Reform Efforts
More broadly in the U.S., proposals to decriminalize drugs—and especially plant-based psychedelic drugs, such as psilocybin mushrooms—have been gaining momentum in recent years. Both Denver and Oakland, CA, decriminalized certain forms of psychedelics in mid-2019. In 2020, Santa Cruz and Ann Arbor did the same. And in November, voters in Washington, D.C., passed a psychedelics decriminalization initiative with more than 76 percent support.
Congressman Files New Marijuana Banking Reform Amendment To Large-Scale House Bill
The House sponsor of a bill to protect banks that work with state-legal marijuana businesses announced on Friday that he is seeking to attach an amendment containing the reform to a broader bill dealing with research and innovation in the tech and manufacturing sectors.
Rep. Ed Perlmutter (D-CO), sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, has expressed interest in finding another vehicle to pursue his proposal after it was stripped from a separate defense bill late last year. The congressman’s legislation has cleared the House in five forms at this point, only to stall in the Senate.
His latest attempt to get the reform enacted is by filing an amendment with the SAFE Banking language to the America COMPETES Act, which does not deal specifically with cannabis issues as drafted but was introduced in the House this week.
“Cannabis-related businesses—big and small—and their employees are in desperate need of access to the banking system and access to capital in order to operate in an efficient, safe manner and compete in the growing global cannabis marketplace,” Perlmutter, who is retiring from Congress after this session and committed to passing his bill first, said in a press release.
I have filed #SAFEBanking as an amendment to #AmericaCOMPETES b/c cannabis-related businesses – big and small – are in desperate need of access to capital & the banking system in order to operate in an efficient, safe manner & compete in the growing global cannabis marketplace.
— Rep. Ed Perlmutter (@RepPerlmutter) January 28, 2022
“The SAFE Banking Act is the best opportunity to enact some type of federal cannabis reform this year and will serve as the first of many steps to help ensure cannabis businesses are treated the same as any other legal, legitimate business,” he said. “I will continue to pursue every possible avenue to get SAFE Banking over the finish line and signed into law.”
It remains to be seen whether the America COMPETES Act will serve as a more effective vehicle for the cannabis banking bill than the National Defense Authorization Act (NDAA), where the language was successfully attached on the House side but later removed amid bicameral negotiations. Perlmutter said at the time that Senate leadership, which is working on comprehensive legalization legislation, was to blame for the decision to remove his amendment from the proposal.
The new SAFE Banking Act amendment will still need to be made in order by the House Rules Committee in order to be formally be considered on the House floor when the body takes up the research and innovation package. The deadline to file amendments was Friday, and the panel is set to take them up starting on Tuesday.
Even some Republicans are scratching their heads about how Democrats have so far failed to pass the modest banking reform with majorities in both chambers and control of the White House. For example, Rep. Rand Paul (R-KY) criticized his Democratic colleagues over the issue last month.
In the interim, federal financial regulator Rodney Hood—a board member and former chairman of the federal National Credit Union Administration (NCUA)—recently said that marijuana legalization is not a question of “if” but “when,” and he’s again offering advice on how to navigate the federal-state conflict that has left many banks reluctant to work with cannabis businesses.
Ohio Lawmakers Will Be Forced To Consider Marijuana Legalization As State Validates Activist Signatures
Ohio activists have collected enough signatures to force the legislature to take up the issue of marijuana legalization, the secretary of state’s office confirmed on Friday.
This comes about two weeks after the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) submitted a final round of signatures for the measure. The petitions’ formal validation triggers the legislative review of legalization, but it does not require lawmakers to enact the reform.
The legislature now has four months to consider the campaign’s cannabis reform proposal. Lawmakers can adopt the measure, reject it or pass an amended version. If they do not pass the measure, organizers can then collect an additional 132,887 valid signatures from registered voters to place the issue on the ballot in November.
CTRMLA previously submitted petitions for the initiative but the state said they were short some 13,000 signatures, requiring activists to go back and make up the difference.
“We are ready and eager to work with Ohio legislators over the next four months to legalize the adult use of marijuana in Ohio,” CTRMLA spokesman Tom Haren said in a press release. “We are also fully prepared to collect additional signatures and take this issue directly to voters on November 8, 2022, if legislators fail to act.”
The measure that lawmakers will be required to consider would legalize possession of up to 2.5 ounces of cannabis for adults 21 and older, and they could also have up to 15 grams of marijuana concentrates. Individuals could grow up to six plants for personal use, with a maximum 12 plants per household.
A 10 percent sales tax would be imposed on cannabis sales, with revenue being divided up to support social equity and jobs programs (36 percent), localities that allow adult-use marijuana enterprises to operate in their area (36 percent), education and substance misuse programs (25 percent) and administrative costs of implementing the system (three percent).
A Division of Cannabis Control would be established under the state Department of Commerce. It would have authority to “license, regulate, investigate, and penalize adult use cannabis operators, adult use testing laboratories, and individuals required to be licensed.”
The measure gives current medical cannabis businesses a head start in the recreational market. Regulators would need to begin issuing adult-use licenses to qualified applicants who operate existing medical operations within nine months of enactment.
The division would also be required to issue 40 recreational cultivator licenses and 50 adult-use retailer licenses “with a preference to applications who are participants under the cannabis social equity and jobs program.” And it would authorize regulators to issue additional licenses for the recreational market two years after the first operator is approved.
Individual municipalities would be able to opt out of allowing new recreational cannabis companies from opening in their area, but they could not block existing medical marijuana firms even if they want to add co-located adult-use operations. Employers could also maintain policies prohibiting workers from consuming cannabis for adult use.
Further, regulators would be required to “enter into an agreement with the Department of Mental Health and Addiction Services” to provide “cannabis addiction services,” which would involve “education and treatment for individuals with addiction issues related to cannabis or other controlled substances including opioids.”
With respect to social equity, some advocate are concerned about the lack of specific language on automatic expungements to clear the records of people with convictions for offenses that would be made legal under the legislation. That said, it does include a provision requiring regulators to “study and fund” criminal justice reform initiatives including expungements.
Ohio voters rejected a 2015 legalization initiative that faced criticism from many reform advocates because of an oligopolistic model that would’ve granted exclusive control over cannabis production to the very funders who paid to put the measure on the ballot.
Activists suspended a campaign to place another measure on the 2020 ballot due to the coronavirus pandemic.
Aside from the new voter initiative, state lawmakers from both parties are separately working to advance marijuana reform.
A legalization bill that was the first of its kind to be introduced in the Ohio legislature last year would legalize the possession, sale and cultivation of cannabis by adults. It’s being championed by Reps. Casey Weinstein (D) and Terrence Upchurch (D).
A pair of Ohio Republican lawmakers similarly filed a bill to legalize marijuana in the state in December. Reps. Jamie Callender (R) and Ron Ferguson (R) first announced their plan to push the legislative reform proposal in October and circulated a co-sponsorship memo to build support for the measure.
There are also additional local reform efforts underway in Ohio for 2022.
After voters in seven cities approved ballot measures to decriminalize marijuana possession during last November’s election—which builds on a slew of previous local reforms in the state—campaigns are now looking to enact decriminalization in Marietta, Rushville, Rutland, Shawnee, McArthur and Laurelville.
Ohio marijuana activists already successfully proved that they turned in enough valid signatures to put a local decriminalization initiative before Kent voters after having missed the 2021 ballot due to a verification error on the part of county officials. That measure is now expected to go before voters this November.
Top Federal Drug Official Says Marijuana Use ‘Stable’ Among Youth At Prohibitionist-Hosted Panel Sponsored By D.A.R.E.
A top federal drug official participated in a panel hosted by a prohibitionist group and sponsored by D.A.R.E.—and she again reiterated that data shows youth marijuana use has remained stable “despite the legalization in many states.”
While National Institute on Drug Abuse (NIDA) Director Nora Volkow expressed concerns about certain cannabis trends related to potency, commercialization and use by pregnant women, she affirmed that surveys funded by her own federal agency have demonstrated that adolescent marijuana use is “stable,” despite repeated arguments from prohibitionists that legalization would lead more young people to experiment with cannabis.
The event was hosted by Smart Approaches to Marijuana (SAM), an anti-legalization group. SAM President Kevin Sabet and the organization’s co-founder former Rep. Patrick Kennedy (D-RI) led the discussion.
“The higher the content of THC, the greater the likelihood that you will become addicted to the drug… The content of THC has gone up at least 4-fold.”
– Dr. Nora Volkow, M.D., Director of the National Institute on Drug Abuse (NIDA)
— SAM (@learnaboutsam) January 28, 2022
Sabet said that data on youth use has showed varying results in states that have legalized cannabis and asked Volkow to weigh in on the issue. She replied that federal data “have not been able to see large differences in terms of prevalence” of cannabis consumption among young people in legal and non-legal states.
The official made similar comments in an interview with Marijuana Moment late last year.
That said, Volkow said that they have seen some differences when it comes to consumption rates among adolescents for edible cannabis products.
“But the effects are not large, and one of the things that also certainly surprised me [is] the rate overall, the prevalence rates of marijuana use among teenagers, have been stable despite the legalization in many states,” she said, adding that there are some concerns about increased frequency of use and limitations in data collection with respect to dosages being taken.
Volkow also commented on a recent federally funded survey that found illicit drug use by young people has taken a significant plunge in the last year, though she largely attributed that to the reduced social interaction resulting from COVID-19 policies across the country.
“Interestingly what we’ve observed during the COVID pandemic is, across schools in the United States, the prevalence of drug use has gone down,” she said, “which likely very much reflects the fact that kids don’t have the opportunity to interact with others, and drug taking at that stage is a peer pressure behavior.”
The official also briefly addressed the fact that she feels criminalizing people over drugs in the first place is the wrong policy approach—a point she’s made repeatedly in interviews and blog posts.
She said that “criminalization has created a system for that allows a structural racism to be implemented, you can control people, and that’s a horrible policy. This criminalization actually opens up our eyes that well, yes, we need to change that.”
However, she said that “liberalizing and making the drugs widely available, with no counter messaging,” is not the alternative she would recommend.
“We need to provide them [addicts] with treatment, so just to say ok we are going to liberalize everything… and not support treatment for those people under those conditions, I actually think it is quite irresponsible.”
– Dr. Nora Volkow, M.D., Director of NIDA
— SAM (@learnaboutsam) January 28, 2022
While the SAM-hosted event did not touch specifically on psychedelics policy, Volkow has also recently discussed that issues, especially as data has shown an increase in use of the substances among adults.
She said people are going to keep using substances such as psilocybin—especially as the reform movement expands and there’s increased attention being drawn to the potential therapeutic benefits—and so researchers and regulators will need to keep up.
Volkow also mentioned that NIDA is “pleased” the Drug Enforcement Administration recently announced plans to significantly increase the quota of certain psychedelic drugs to be produced for use in research.
Photo courtesy of Philip Steffan.