“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.
Top IRS Official Says Marijuana Banking Reform Would Help Feds ‘Get Paid’
The Internal Revenue Service (IRS) would like to get paid—and it’d help if the marijuana industry had access to banks like companies in other legal markets, an official with the federal department said. She also talked about unique issues related to federal tax deductions for cannabis businesses.
At an event hosted by UCLA’s Annual Tax Controversy Institute on Thursday, IRS’s Cassidy Collins talked about the “special type of collection challenge” that the agency faces when it comes to working with cannabis businesses while the product remains federally illegal.
While IRS isn’t taking a stand on federal marijuana policy, Collins said that the status quo leaves many cannabis businesses operating on a cash-only basis, creating complications for the agency, in part by making it harder for banks to “pay us.”
“The reason why [the marijuana industry is] cash intensive is twofold,” she said. “Number one, a lot of customers don’t want a paper trail showing that they’re buying marijuana, and number two, the hesitancy of banks to allow marijuana businesses to even bank with them.”
Of course, the reason why many financial institutions remain hesitant to take on cannabis companies as clients is because the plant is a strictly controlled substance under federal law.
“There’s been a number of legislative bills that have been introduced—and I am definitely not expressing any opinion personally or on behalf of the IRS about any pending or proposed legislation,” Collins, who is a senior counsel in the IRS Office of Chief Counsel, said. “But it is interesting to note that, if the law changed so that the marijuana businesses could have banks, that would make the IRS’s job to collect [taxes] a lot easier. As part of collection, we want the money. That’s our end goal there.”
A major part of what makes cannabis businesses unique is that they don’t qualify for traditional tax credits under an IRS code known as 280E. That policy “prohibits them from claiming deductions for business expenses because they’re technically being involved in drug trafficking,” Collins explained at the event, from which small excerpts of her comments were reported by Bloomberg.
There are some options available to lessen the burden on marijuana firms, however. At the end of the day, “IRS will work with marijuana companies because, again, we want to get paid,” Collins said.
One of the ways the agency works with marijuana business operators is to have them visit designated IRS “tax assistance centers” that accept cash payments in excess of $50,000. But the official warned businesses to “be prepared to be there for a little while” as the center checks—and double checks—the amount of cash being submitted.
“Revenue officers will assist the marijuana companies in paying us,” she said.
IRS officials could also help cannabis firms by having officials accompany them “to the bank in order to try to help the taxpayer secure a cashier’s payment to pay the IRS, as well as using money orders,” she said, adding that “our revenue officers are are wanting to work with the marijuana companies to help assist them to pay us.”
“When the revenue officers are there in person with the taxpayer, that could potentially help increase the likelihood that the bank will cooperate and help the taxpayer transition into a cashier’s check,” she continued. “And that has been a trend since this first became legal [at the state level], that more and more banks are allowing cannabis companies to bank with them.”
In a report published earlier this year, congressional researchers examined tax policies and restrictions for the marijuana industry—and how those could change if any number of federal reform bills are enacted.
IRS, for its part, said last month that it expects the cannabis market to continue to grow, and it offered some tips to businesses on staying compliant with taxes while the plant remains federally prohibited.
As it stands, banks and credit unions are operating under 2014 guidance from the Financial Crimes Enforcement Network (FinCEN) that lays out reporting requirements for those that choose to service the marijuana industry.
Leaders in both chambers of Congress are working on legalization bills to end federal marijuana prohibition. But stakeholders are hopeful that, in the interim, legislators will enact modest marijuana banking reform. Legislation to protect financial institutions from being penalized for working with cannabis businesses passed the House for the fifth time last month.
Rodney Hood, a board member of the National Credit Union Administration, wrote in a Marijuana Moment op-ed this month that legalization is an inevitability—and it makes the most sense for government agencies to get ahead of the policy change to resolve banking complications.
IRS separately hosted a forum in August dedicated to tax policy for marijuana businesses and cryptocurrency.
Earlier this year, IRS Commissioner Charles Rettig told Congress that the agency would “prefer” for state-legal marijuana businesses to be able to pay taxes electronically, as the current largely cash-based system under federal cannabis prohibition is onerous and presents risks to workers.
Former Treasury Secretary Steven Mnuchin said in 2019 that he’d like to see Congress approve legislation resolving the cannabis banking issue and he pointed to the fact that IRS has had to build “cash rooms” to deposit taxes from those businesses as an example of the problem.
IRS released updated guidance on tax policy for the marijuana industry last year, including instructions on how cannabis businesses that don’t have access to bank accounts can pay their tax bills using large amounts of cash.
The update appears to be responsive to a Treasury Department internal watchdog report that was released earlier in the year. The department’s inspector general for tax administration had criticized IRS for failing to adequately advise taxpayers in the marijuana industry about compliance with federal tax laws. And it directed the agency to “develop and publicize guidance specific to the marijuana industry.”
Luxembourg Set To Become First European Country To Legalize Marijuana Following Government Recommendation
Luxembourg is poised to become the first European country to legalize marijuana, with key government agencies putting forward a plan to allow the possession and cultivation of cannabis for personal use.
The ministers of justice and homeland security on Friday unveiled the proposal, which will still require a vote in the Parliament but is expected to pass. It’s part of a broader package of reform measures the agencies are recommending.
Under the marijuana measure, adults 18 and older could grow up to four plants. However, under the non-commercial model that is being proposed, possessing more than three grams in public would still be a civil offense, carrying a fine of €25-500 ($29-581). Currently, the maximum fine for possession is €2,500 ($2,908).
In terms of access, adults would be able to buy and trade cannabis seeds for their home garden.
Justice Minister Sam Tamson said the government felt it “had to act” and characterized the home cultivation policy change as a first step, The Guardian reported.
👉🏻élaboration du projet de loi usage privé du #cannabis : jusqu’à 4 plantes à domicile & décorrectionnalisation <3g
👉🏻renforcement de la prévention & de l’accompagnement
👉🏻⬆️des moyens de la police
👉🏻élaboration d’un projet de production/vente #Luxembourg pic.twitter.com/8yre0Udt8J
— Sam Tanson (@SamTanson) October 22, 2021
“The idea is that a consumer is not in an illegal situation if he consumes cannabis and that we don’t support the whole illegal chain from production to transportation to selling where there is a lot of misery attached,” he said. “We want to do everything we can to get more and more away from the illegal black market.”
While limited in scope, the reform would make Luxembourg the first country in Europe to legalize the production and possession of marijuana for recreational use. Cannabis has been widely decriminalized in certain countries in the continent, but it has remained criminalized by statute.
Government sources in Luxembourg told The Guardian that plans are in the works to develop a program where the state regulates the production and distribution of marijuana. Tamson said they are working to resolve “international constraints” before taking that step, however, referring to United Nations treaty obligations that multiple U.S. states and other countries like Canada and Uruguay have openly flouted.
The measures include:
🟢 Regulation of cannabis use and cultivation: adults will be able to legally cultivate up to four cannabis plants for their own use, provided the cultivation is happening at their place of residence.
— European Greens (@europeangreens) October 22, 2021
For now, the country is focusing on legalization within a home setting. Parliament is expected to vote on the proposal in early 2022, and the ruling parties are friendly to the reform.
This has been a long time coming, as a coalition of major parties of Luxembourg agreed in 2018 to enact legislation allowing “the exemption from punishment or even legalization” of cannabis.
Meanwhile in the U.S., congressional lawmakers are working to advance legalization legislation. A key House committee recently approved a bill to end marijuana prohibition, and Senate leadership is finalizing a separate reform proposal.
In Mexico, a top Senator said this week that lawmakers could advance legislation to regulate marijuana in the coming weeks. The Supreme Court has already ruled that adults cannot be criminalized over possession or cultivation, but there’s currently no program in place to provide access.
Photo courtesy of Mike Latimer.
New Bipartisan Marijuana Research Bill In Congress Would Let Scientists Study Dispensary Products
A bipartisan group of federal lawmakers introduced a bill on Thursday to remove barriers to conducting research on marijuana, including by allowing scientists to access cannabis from state-legal dispensaries.
The Medical Marijuana Research Act, filed by the unlikely duo of pro-legalization Rep. Earl Blumenauer (D-OR) and prohibitionist Rep. Andy Harris (R-MD), would streamline the process for researchers to apply and get approved to study cannabis and set clear deadlines on federal agencies to act on their applications.
“Congress is hopelessly behind the American people on cannabis, and the quality of our research shows why that is an urgent problem,” Blumenauer told Marijuana Moment. “Despite the fact that 99 percent of Americans live in a state that has legalized some form of cannabis, federal law is still hamstringing researchers’ ability to study the full range of health benefits offered by cannabis, and to learn more about the products readily available to consumers.”
“It’s outrageous that we are outsourcing leadership in that research to Israel, the United Kingdom, Canada, and others. It’s time to change the system,” he said.
Late last year, the House approved an identical version of the cannabis science legislation. Days later, the Senate passed a similar bill but nothing ended up getting to the president’s desk by the end of the last Congress. Earlier this year, a bipartisan group of senators refiled their marijuana research measure for the current 117th Congress.
Meanwhile, lawmakers are also advancing a separate strategy to open up dispensary cannabis to researchers. Large-scale infrastructure legislation that has passed both chambers in differing forms and which is pending final action contains provisions aimed at allowing researchers to study the actual marijuana that consumers are purchasing from state-legal businesses instead of having to use only government-grown cannabis.
The new bill filed this week by Blumenauer and Harris, along with six other original cosponsors, would also make it easier for scientists to modify their research protocols without having to seek federal approval.
Marijuana Moment is already tracking more than 1,200 cannabis, psychedelics and drug policy 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.
Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
It would additionally mandate that the Drug Enforcement Administration (DEA) license more growers and make it so there would be no limit on the number of additional entities that can be registered to cultivate marijuana for research purposes. It would also require the U.S. Department of Health and Human Services (HHS) to submit a report to Congress within five years after enactment to overview the results of federal cannabis studies and recommend whether they warrant marijuana’s rescheduling under federal law.
“The cannabis laws in this country are broken, including our laws that govern cannabis research,” Blumenauer said in remarks in the Congressional Record. “Because cannabis is a Schedule I substance, researchers must jump through hoops and comply with onerous requirements just to do basic research on the medical potential of the plant.”
The new legislation will “both streamline the often-duplicative licensure process for researchers seeking to conduct cannabis research and facilitate access to an increased supply of higher quality medical grade cannabis for research purposes,” he said, adding that expanded studies will help make sure “Americans have adequate access to potentially transformative medicines and treatments.”
For half a century, researchers have only been able to study marijuana grown at a single federally approved facility at the University of Mississippi, but they have complained that it is difficult to obtain the product and that it is of low quality. Indeed, one study showed that the government cannabis is more similar to hemp than to the marijuana that consumers actually use in the real world.
There’s been bipartisan agreement that DEA has inhibited cannabis research by being slow to follow through on approving additional marijuana manufacturers beyond the Mississippi operation, despite earlier pledges to do so.
In May, the agency finally said it was ready to begin licensing new cannabis cultivators. Last week, DEA proposed a large increase in the amount of marijuana—and psychedelics such as psilocybin, LSD, MDMA and mescaline—that it wants produced in the U.S. for research purposes next year.
Under the new House bill, the agency would be forced to start approving additional cultivation applications for study purposes within one year of the legislation’s enactment.
HHS and the attorney general would be required under the bill to create a process for marijuana manufacturers and distributors to supply researchers with cannabis from dispensaries. They would have one year after enactment to develop that procedure, and would have to start meeting to work on it within 60 days of the bill’s passage.
In general, the legislation would also establish a simplified registration process for researchers interested in studying cannabis, in part by reducing approval wait times, minimizing costly security requirements and eliminating additional layers of protocol review.
Read the full text of the new marijuana research bill below: