MONTPELIER Vt. (Oct 12, 2020) – Last week, Vermont Gov. Phil Scott allowed a bill that creates a structure to tax and regulate the sale of marijuana become law without his signature despite federal prohibition. He also signed a second measure to create a process for the automatic expungement of some marijuana possession convictions.

A bipartisan coalition of Senators introduced Senate Bill 54 (S.54) in January 2019. Vermont legalized the possession of one ounce or less and home cultivation of marijuana by adults over 21 in 2018, but the law did not allow commercial production or distribution of cannabis for the recreational market. Enactment of S.54 creates a regulatory structure for the cultivation and sale of marijuana in the state. The new law will create various categories of business licenses and a taxing structure.

The Senate initially passed S.54 by a 23-5 vote in February 2019. The House passed a significantly amended version of the bill on Feb. 27 of this year on a voice vote. The bill was then referred to a conference committee made up of three representatives and three senators to hammer out the differences. The compromise bill was approved by the House by a 92-56 vote. The Senate gave its final approval 23-6. With Gov. Scott’s commitment not to veto the bill, the law went into effect Oct. 7. Many sections went into immediate effect. Other sections of the law will go into effect over time beginning on Jan. 1, 2021.

Scott, a Republican, raised a number of concerns about the new law but said that S.54 “did move forward in a lot of areas that I had concerns about, but it still isn’t exactly what I’d like to see and there are some shortcomings.” (You can read more about Scott’s comments HERE.)

Scott signed a second bill creating an automatic expungement process for some marijuana convictions.

Sen. Richard Sears (D-North Bennington) introduced Senate Bill 234 (S.234) in January. Under the new expungement process, individuals convinced of marijuana possession of up to two ounces will have their records automatically reviewed and cleared. The legislation also lifts a requirement that those with past convictions must disclose them.

S.234 also decriminalized possession of over one ounce of marijuana.

The House passed S.234 by a vote of 113 to 10. The Senate approved the measure today by a voice vote. Scott signed the bill on Oct. 7. The marijuana expungement provisions will go into effect on Jan. 1.

Both of these measures became law despite the federal government’s continued prohibition of marijuana.

STEP-BY-STEP

Vermont legalized medical marijuana back in 2004. The decriminalization of recreational marijuana last year removed another layer of laws prohibiting the possession and use of cannabis, and the enactment of S.54 would take yet another step forward. Despite this, federal prohibition remains on the books.

Under the 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 marijuana 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.

Stripping away state laws criminalizing cannabis 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 up to 40 percent of the DEA’s yearly annual 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 either. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

A GROWING MOVEMENT

Vermont 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. Illinois legalized cannabis through legislative action 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.

Efforts to legalize commercial sales of marijuana in Vermont underscore 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.

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