RICHMOND, Va. (July 7, 2020) – On July 1, a Virginia law went into effect that decriminalizes marijuana possession despite federal prohibition.

A bipartisan coalition of senators and representatives introduced House Bill 972 (HB972) and Senate Bill 2 (SB2) earlier this year. Under the law, marijuana will remain illegal in the state, but possession of up to an ounce of cannabis will now be a civil infraction subject to a $25 fine instead of a criminal offense. Under the old law, possession of a half-ounce or less is punishable by up to 30 days in jail and a $500 fine. Possession of hash and other concentrates is a felony.

The legislation also includes provisions to seal the records of past and future marijuana convictions and bars most employers from asking about marijuana convictions in the hiring process.

The bill took a winding path to final approval.

Different versions of the bill were initially passed by the House and the Senate leading to a conference committee. The Senate passed the final version 27-12 and the House approved the measure 56-36. Gov. Northam gave his approval to the measure on April 11, but he recommended amendments, including one that would push the date of a legislative study on the legalization of marijuana back one year to November 2021. The legislature rejected the delay, but approved other technical amendments, sending the bill back to the governor. On May 21, Northam signed the bill and it went into effect July 1.

Sen. Adam Ebbin (D-Alexandria) carried the bill in the Senate. He said the enactment of the law is good news for thousands of Virginians.

“This means close to 30,000 people a year will no longer be labeled as criminals and no longer will suffer the negative repercussions of a criminal conviction.”

According to a point-in-time study included in a State Crime Commission report, there were 127 people being held in Virginia jails solely on marijuana charges on one day in July 2017.

Successful decriminalization has generated momentum in Virginia and there is now a push to legalize marijuana completely during a special session this summer.

“The Commonwealth is past the point for studies on policing and law enforcement—immediate action must be taken to eliminate law enforcement abuse, prevent and punish racist behaviors, weed out institutional discrimination, and increase accountability at all levels of law enforcement,” the Virginia Legislative Black Caucus (VLBC) said in a list of priorities it released recently.

While the enactment of HB972/SB2 will not end marijuana prohibition in Virginia, it will drastically reduce prosecution and disincentivize enforcement efforts.


Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Despite federal prohibition, Virginia legalized medical marijuana in 2018 and expanded the program last year. Decriminalization of marijuana would remove yet another layer of laws punishing the possession and use of marijuana in the state, but federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


Virginia joins a growing number of states increasingly ignoring federal prohibition, and nullifying it in practice.

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019.

With 33 states including allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats.

The push to decriminalize marijuana in Virginia underscores another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – it tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.

Mike Maharrey

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