Both chambers of the Virginia legislature this week approved bills to help people clear prior marijuana convictions from their records.
The state Senate passed legislation on Thursday that would provide individuals with an opportunity to have cannabis possession convictions expunged—one of the latest in a series of marijuana reforms that legislators have advanced during the summer special session.
Sen. Creigh Deeds (D) introduced the bill, which would require individuals to first pay “all court costs, fines, and restitution, and for five years to have elapsed since the date of conviction” before their court and police records could be cleared. Beyond cannabis possession, people would also be eligible to petition for an expungement of other low-level offenses such as using a fake ID to buy alcohol.
The House of Delegates also approved a separate expungement bill on Wednesday. It would establish “a process for the automatic expungement of criminal records for certain convictions, deferred dispositions, acquittals, and for offenses that have been nolle prossed or otherwise dismissed,” according to a summary. Those with marijuana possession convictions would be eligible for the expungement.
That bill has been transmitted to the Senate and referred to the Judiciary Committee. Since both chambers have now passed expungement legislation, albeit in different forms, it is likely that some kind of bicameral deal on the issue can be negotiated in order to get a proposal to the desk of Gov. Ralph Northam (D).
“These bills include long overdue steps the Commonwealth should immediately take to begin undoing the damages inflicted upon hundreds of thousands of Virginians during the state’s failed multi-decade experiment with prohibition,” NORML Development Director Jenn Michelle Pedini, who also serves as executive director of Virginia NORML, told Marijuana Moment. “Virginians deserve the opportunity to expunge their records of marijuana-related offenses, the majority of which no longer carry a criminal penalty in the Commonwealth.”
Virginia lawmakers approved a bill to decriminalize simple marijuana possession earlier this year, and it went into effect on July 1. It makes possession of up to one ounce a civil penalty punishable by a $25 fine with no threat of jail time. But while advocates view that development as a significant victory, legislators are also looking for ways to build upon the reform.
For example, both chambers passed bills to further reduce criminal penalties for cannabis possession last week. The legislation would make possession in a motor vehicle a secondary offense instead of a primary one. The measure would also prevent law enforcement from conducting searches or seizing property based on the odor of marijuana alone.
“Prohibiting law enforcement searches based solely on the odor of marijuana will greatly reduce non-essential interactions between police and otherwise law-abiding members of the public,” Pedini said. “Eliminating those interactions is of even greater importance during the pandemic.”
Making possession a secondary offense means that a summons couldn’t be issued unless a person is also charged with a separate, second violation.
The House version contains a unique provision to prohibit individual jurisdictions from enacting ordinances that would make a violation a primary offense if it’s considered a secondary offense under state law.
House lawmakers also recently approved a bill that would give people issued a summons for cannabis possession the option of prepaying the civil penalty instead of having to go to court.
Meanwhile, Del. Jennifer Carroll (D), who is running for governor in 2021, also introduced legislation during the special session to legalize marijuana possession. While decriminalization has been enacted, the new bill would amend the code to stipulate that “it is unlawful for any person knowingly or intentionally to possess a controlled substance other than marijuana.” The measure has been referred to the House Courts of Justice Committee.
All of these incremental reforms come as legislators continue to pursue a broader legalization plan in the Commonwealth that would include a system of regulated and taxed sales and production.
The decriminalization bill that passed earlier this year contained a provision that called for the establishment of a working group to study and make recommendations about adult-use marijuana legalization. That panel has met twice and expects to issue its report to the legislature at the end of November.
Meanwhile, the Joint Legislative Audit and Review Committee is doing its own analysis on ending cannabis prohibition and will similarly report on its findings before the end of the year.
While some lawmakers plan to incorporate findings from those reports into a legalization bill in 2021, the Virginia Legislative Black Caucus is calling for an expedited process and isn’t interested in waiting for the results.
Photo courtesy of Philip Steffan.