“We didn’t get that across the finish line this year, but we’ve got session coming up in 2022, and I suspect that’ll be an issue that’s on the table.”
By Ned Oliver, Virginia Mercury
Marijuana will be legal to possess and grow in Virginia on July 1, but people serving jail and prison sentences related to the drug will remain behind bars under legislation passed by the General Assembly earlier this month.
Lawmakers had considered including a provision that would have granted resentencing hearings to people incarcerated on certain marijuana charges, but the language didn’t make it in the final bill—an outcome some lawmakers and advocates are calling a disappointment.
“That was urgent to me, because now we’re going to be in a situation where you’ve got people still sitting in jail for the very thing that we’ve already legalized,” said Sen. Louise Lucas, D-Portsmouth, who co-sponsored the legislation. “It makes no sense to me.”
Democrats who worked on the legislation, which lawmakers celebrated with a ceremonial bill signing Wednesday, said this week they were unable to reach an agreement on resentencing due to the complexity of the issue combined with last-minute nature of the amendments that sped legalization to this summer.
Some, including Lucas, also doubted Democrats would have been able to muster the votes to pass the measure this year. The party holds a with a 10-seat majority in the House but just a 21-19 advantage in the Senate.
Virginia’s legalization bill followed a long and winding path through the General Assembly, nearly failing in the final days of the legislative session amid disagreement between the House and Senate. The compromise the two chambers finally passed was widely panned for delaying the end of prohibition until 2024, when retail sales would begin.
Northam responded by sending the legislation back to lawmakers with amendments that sped legalization of simple possession to this summer and will allow people to grow up to four marijuana plants per household.
And while sales remain illegal until the regulated marketplace opens in 2024, his amendments significantly relaxed some criminal penalties surrounding the drug. People caught with more than the permitted ounce of marijuana but less than a pound will face a $25 civil infraction, an amount that under current law is subject to felony penalties.
People caught growing large numbers of plants will also face significantly lighter penalties, which range from a $25 fine to a misdemeanor, with felony penalties kicking in only for people caught growing 50 or more plants.
It’s unclear how many people are currently imprisoned on marijuana charges who would have faced lesser penalties under the new law, but data compiled by the Virginia Criminal Sentencing Commission suggests the number is not insignificant.
Over a two-year period ending July 1, 2020, just over 1,000 people were charged with distribution of more than a half ounce and less than five pounds of marijuana—a charge that is often brought based on possession of large amounts of marijuana, which will soon be subject only to minor penalties.
Of those 1,000 charges, half were sentenced to jail, serving a median sentence of three months. Another 17.5 percent were sentenced to prison, serving a median sentence of 1.7 years.
During the same time period, 40 people were charged with growing large amounts of marijuana. Half were given six-month jail sentences, but 7.5 percent were sentenced to a median of 10 years in prison.
Sen. Scott Surovell, D-Farifax, and Del. Don Scott, D-Portsmouth, both made a last-minute push to include resentencing provisions in the bill when it became clear Northam planned to hand down amendments moving legalization up to this summer.
But at that point, they said it was too late.
Northam had included language granting resentencing hearings in his initial legalization proposal to people imprisoned on marijuana charges as long as they hadn’t been caught with more than five pounds or sold it to a child. At the hearings, a judge could consider “circumstances in mitigation of the offense, including the legalization of marijuana.”
But lawmakers in both the House and Senate, believing marijuana would not be legalized until 2024 at the earliest, spent almost no time discussing it during the session, instead focusing on provisions governing how marijuana would eventually be sold, regulated and taxed.
“The discussion didn’t arise until the very end of our conversations and at that point, we didn’t really have a lot of time to look into it,” Surovell said, citing uncertainty about the potential cost of the resentencing hearings, which he said would require the state to conduct pre-sentence reports and review by local prosecutors. “Just given that it hadn’t really been publicly vetted very carefully, I think there was concern about pulling the trigger on it without knowing the full implications.”
Advocates have said they were disappointed criminal law seemed to take a backseat to commercial considerations during debate among lawmakers.
Chelsea Higgs Wise, the director of the civil rights group Marijuana Justice, said that focus is reflected in the failure to address resentencing. She said that during the legislative session, she struggled to get the attention of lawmakers working on the bill.
Jenn Michelle Pedini, executive director of Virginia NORML, the state chapter of the National Organization for the Reform Marijuana Laws, called the failure to address resentencing unfortunate.
“How ‘complicated and expensive’ is it to continue the incarceration of these individuals for a substance the state has decided is now legal?” they asked.
Northam’s administration said the governor was simply following lawmakers’ lead when he didn’t include resentencing in the amendments he handed down, but he encouraged action on the issue next year. He also noted the bill includes broad provisions that within the next five years will begin to automatically seal records of past misdemeanor marijuana charges and allow people charged with more serious offenses to petition a judge to have them expunged.
“We didn’t get that across the finish line this year, but we’ve got session coming up in 2022, and I suspect that’ll be an issue that’s on the table,” Northam said. “This is a reason that we wanted to move forward the date of legalization, because why should we be arresting, why should we be penalizing people—ruining, literally, their lives, for something that’s going to be legal.”
Scott, who works as a lawyer in Portsmouth, said the issue will be a focus for him. Speaking before Northam’s bill signing ceremony Wednesday, he said he had been in court just that morning representing a client sentenced to 45 days in jail for possession with intent to distribute marijuana.
“These charges are going to continue to persist over the next couple years and we need to make sure we remedy it for people who are serving time,” he said.
Illinois Will ‘Blow Past’ $1 Billion In Legal Marijuana Sales In 2021, Chamber Of Commerce President Says
“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” the Chamber leader said.
By Elyse Kelly, The Center Square
Illinois’s cannabis industry is growing up fast, with adult-use recreational cannabis sales expected to hit $1 billion by year-end.
In March alone, Illinoisans spent $110 million on recreational marijuana.
Todd Maisch, president and CEO of the Illinois Chamber of Commerce, said one factor contributing to Illinois’ explosive growth is that most neighboring states haven’t legalized marijuana yet.
“What we saw early on in states like Washington and Colorado is they did have demand come in from surrounding states, which frankly benefits our industry and benefits the taxes collected,” Maisch said.
Cannabis sales have already surpassed alcohol’s tax revenues for the state, and Maisch said he thinks $1 billion estimates are conservative.
“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” Maisch said.
There are only a couple of things that could stop Illinois’ explosive cannabis market growth, Maisch said. He said that policymakers could ruin things by pushing taxes too high as evidenced by the tobacco market.
“As taxes have gone up and up and up, they’ve pushed people all the way into the black market or they’ve created this grey market in which people are ostensibly paying some of the taxes, but they’re still getting sources of tobacco products that avoid much of the tax,” Maisch said.
The other thing that could head off continued growth is other states opening up recreational-use markets.
“So if you start to see surrounding states go to recreational, that’s definitely going to flatten the curve because we’re not going to be pulling in demand from other states,” Maisch said.
Maisch points out some concerns that accompany the explosion of Illinois’s recreational cannabis market including workforce preparedness.
“All of those individuals who are deciding to go ahead and consume this product are really taking themselves out of a lot of job opportunities that they would otherwise be qualified, so there’s a real upside and a downside,” Maisch said.
While it’s easy to track the revenues this industry brings into state coffers, he points out, it will be harder to track the lack of productivity and qualified individuals to operate heavy machinery and other jobs that require employees to pass a drug test.
DEA Finally Ready To End Federal Marijuana Research Monopoly, Agency Notifies Grower Applicants
The Drug Enforcement Administration (DEA) on Friday notified several companies that it is moving toward approving their applications to become federally authorized marijuana manufacturers for research purposes.
This is a significant development—and one of the first cannabis-related moves to come out of the Biden administration. There is currently a monopoly on federal cannabis cultivation, with the University of Mississippi having operated the only approved facility for the past half-century.
It was almost five years ago that DEA under President Barack Obama first announced that it was accepting applications for additional manufacturers. No approvals were made during the Trump administration. And the delay in getting acceptances has led to frustration—and in some cases, lawsuits—among applicants.
But on Friday, organizations including the Biopharmaceutical Research Company (BRC), Scottsdale Research Institute (SRI) and Groff NA Hemplex LLC were notified by the agency that their requests were conditionally accepted.
“DEA is nearing the end of its review of certain marijuana grower applications, thereby allowing it to soon register additional entities authorized to produce marijuana for research purposes,” DEA said. “Pending final approval, DEA has determined, based on currently available information, that a number of manufacturers’ applications to cultivate marijuana for research needs in the United States appears to be consistent with applicable legal standards and relevant laws. DEA has, therefore, provided a Memorandum of Agreement (MOA) to these manufacturers as the next step in the approval process.”
The Wall Street Journal first reported on the move, and it’s unclear just how many organizations have received a DEA communication so far.
Matt Zorn, who has represented SRI in a suit against DEA over the processing delays, told Marijuana Moment that the agency explained that it is “moving forward” with the facility’s application and that it appears to be “consistent with public interest” to give the institute the ability to grow marijuana for study purposes.
SRI’s Dr. Sue Sisley is in a process of completing a memorandum of agreement that DEA requested “so that it can be executed and official,” according to a press release.
BRC CEO George Hodgin said in another press release that after being finalized, “this federal license will forever change the trajectory of our business and the medicinal cannabis industry.”
“The DEA’s leadership will set off a nationwide wave of innovative cannabis-derived treatments, unlock valuable intellectual property and create high quality American jobs,” he said. “The BRC team is already familiar with DEA compliance procedures based on our extensive history of controlled substances activity, and our world class staff is ready to hit the ground running on this new business arm that the DEA has authorized.”
DEA said it has presented applicants that appear to meet legal requirements “with an MOA outlining the means by which the applicant and DEA will work together to facilitate the production, storage, packaging, and distribution of marijuana under the new regulations as well as other applicable legal standards and relevant laws.”
“To the extent these MOAs are finalized, DEA anticipates issuing DEA registrations to these manufacturers,” the agency said. “Each applicant will then be authorized to cultivate marijuana—up to its allotted quota—in support of the more than 575 DEA-licensed researchers across the nation.”
DEA said it “will continue to prioritize efforts to evaluate the remaining applications for registration and expects additional approvals in the future” and will publicly post information about approvals as they are finalized.
Following a 2019 suit against DEA by SRI, a court mandated that the agency take steps to process the cultivation license applications, and that legal challenge was dropped after DEA provided a status update.
That suit argued that the marijuana grown at the University of Mississippi is of poor quality, does not reflect the diversity of products available on the commercial market and is therefore inadequate for clinical studies.
That’s also a point that several policymakers have made, and it’s bolstered by research demonstrating that the federal government’s cannabis is genetically closer to hemp than marijuana that consumers can obtain in state-legal markets.
Last year, DEA finally unveiled a revised rule change proposal that it said was necessary to move forward with licensing approvals due to the high volume of applicants and to address potential complications related to international treaties to which the U.S. is a party.
SRI filed another suit against DEA in March, claiming that the agency used a “secret” document to justify its delay of approving manufacturer applications. And that was born out when the Justice Department Office of Legal Counsel document was released last year as part of a settlement in the case, revealing, among other things, that the agency feels that its current licensing structure for cannabis cultivation has been in violation of international treaties for decades.
Photo by Aphiwat chuangchoem.
Mississippi Supreme Court Overturns Medical Marijuana Legalization Ballot That Voters Approved
A voter-approved initiative to legalize medical marijuana in Mississippi has been overturned by the state Supreme Court.
On Friday, the court ruled in favor of a Mississippi mayor who filed a legal challenge against the 2020 measure, nullifying its certification by the Secretary of State. The lawsuit was unrelated to the merits of the reform proposal itself, but plaintiffs argued that the constitutional amendment violated procedural rules for placing measures on the ballot.
While the court acknowledged that a “strong, if not overwhelming, majority of voters of Mississippi approved Initiative 65” to legalize medical cannabis in the state, Madison Mayor Mary Hawkins Butler’s (R) petition was valid for statutory reasons.
Madison’s challenge cites a state law stipulating that “signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot.” But that policy went into effect when Mississippi had five congressional districts, and that’s since been reduced to four, making it mathematically impossible to adhere to.
The secretary of state and other officials pushed back against the lawsuit and argued that a plain reading of the state Constitution makes it clear that the intention of the district-based requirement was to ensure that signatures were collected in a geographically dispersed manner—and the result of the campaign met that standard.
But in the court’s 6-3 ruling released on Friday, the justices said that their hands were tied. The legislature or administration might be able to fix the procedural ballot issue, but it had to follow the letter of the law.
“We find ourselves presented with the question squarely before us and nowhere to turn but to its answer,” the decision states. “Remaining mindful of both the November 3, 2020 election results and the clear language in section 273 seeking to preserve the right of the people to enact changes to their Constitution, we nonetheless must hold that the text of section 273 fails to account for the possibility that has become reality in Mississippi.”
In sum, a Census-driven change in the number of congressional districts in Mississippi “did, indeed, break section 273 so that, absent amendment, it no longer functions,” meaning there’s no legal way to pass a constitutional ballot initiative in the state.
“Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress. To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court.”
“We grant the petition, reverse the Secretary of State’s certification of Initiative 65, and hold that any subsequent proceedings on it are void,” the court ruled.
One justice who dissented said that the district-based requirement is arbitrary as it concerns Mississippi elections. While the federal government defines the state as having four congressional districts, the state Constitution “lays out the five districts,” and “there have been zero changes to the five districts” as far as the state’s laws are concerned.
In any case, this marks a major defeat for cannabis reform activists in the state who collected more than 214,000 signatures for their initiative. Sixty-eight percent of voters approved a general ballot question on whether to allow medical cannabis, and 74 percent signed off on advocates’ specific measure in a separate question.
“The Mississippi Supreme Court just overturned the will of the people of Mississippi,” Ken Newburger, executive director for the Mississippi Medical Marijuana Association, said in a press release. “Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right.”
“It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter,” he said.
Today the MS Supreme Court ruled against the state’s ballot initiative process, killing the medical marijuana program 74% of Mississippians voted to pass. This is devastating for not only patients, but voters as a whole. Below is our statement: https://t.co/jrDoJM3K16 pic.twitter.com/AR3xuId3xR
— Mississippi Medical Marijuana Association (@medmarijuanams) May 14, 2021
Under the voter-approved initiative, patients with debilitating medical issues would have been allowed to legally obtain marijuana after getting a doctor’s recommendation. The proposal included 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would have been able to possess up to 2.5 ounces of marijuana per 14-day period.
There was an attempt in the legislature to pass a bill to legalize medical marijuana in the event that the court overruled the voter-approved initiative, but it failed to be enacted by the session’s end.
The Mississippi State Department of Health told WJTV that it will cease work on developing medical cannabis regulations in light of the court ruling.
“However, the agency has certainly learned a lot in the process of putting together a successful medical marijuana program, and we stand ready to help the legislature if it creates a statutory program,” Liz Sharlot, director of the Office of Communications for the department, said.
This is the latest state Supreme Court setback to affect cannabis reform efforts.
Last month, the Florida Supreme Court dealt a critical blow to marijuana activists working to legalize marijuana in the state—killing an initiative that hundreds of thousands of voters have already signed and forcing them to start all over again if they want to make the 2022 ballot.
While a Nebraska campaign collected enough signatures to qualify a reform initiative in 2020, the state Supreme Court shut it down following a legal challenge. It determined that the measure violated the state’s single-subject rule, much to the disappointment of advocates.
In South Dakota, the fate of an adult-use legalization initiative that voters approved last November is also in the hands of the state’s Supreme Court, where a sheriff is challenging its constitutionality based on a single subject rule as well.
Opponents to a Montana marijuana legalization measure that was approved by voters have also filed lawsuits contesting the voter-approved initiative for procedural reasons, arguing that its allocation of revenue violates the state Constitution. While the state Supreme Court declined to hear the case last year, it did not rule on the merits and left the door open to pursuing the case in district and appeals court, which plaintiffs then pursued.
Read the Mississippi Supreme Court ruling on the medical cannabis initiative below: