RICHMOND, Va. (July 1, 2021) – Today, a Virginia law legalizing adult-use marijuana went into effect despite ongoing federal cannabis prohibition.
Sen. Adam Ebbin (D-Alexandria) and Sen. Louise Lucas (D-Portsmouth) introduced Senate Bill 1406 (SB1406) on Jan. 13. Del. Charniele Herring (D-Alexandria) along with a large coalition of Democrats introduced the House companion, House Bill 2312 (HB2312). Under the law, adults 21 and older can purchase and possess up to 1 ounce of marijuana and cultivate up to four plants without penalty. The legislation also creates a regulatory scheme for the commercial cultivation and retail sale of cannabis. The law establishes an independent agency called the Virginia Cannabis Control Authority to establish a regulatory structure for the adult-use market. The bill includes provisions to create a process for the expungement of records relating to past marijuana crimes.
As originally passed by the legislature, legalization would not have gone into effect until Jan. 1, 2024, and would have also required the bill to pass a second vote by the assembly next year. Gov. Ralph Northam returned SB1406/HB2312 to the legislature with recommended amendments. Most significantly, the governor’s changes enacted legalization as of July 1, 2021.
On April 7, the House approved the governor’s amendments 53-44. The Senate agreed to the changes by a 20-20 vote with the Senate chair breaking the tie. Legalization went into on July 1 without further action from the governor.
In addition to implementing legalization this year, Northam’s amendments will speed up the expungement process, allowing for the expungement and sealing of criminal records on marijuana to begin as soon as state agencies are able to do so, and another amendment simplifies the criteria for when records can be sealed.
Northam also proposed changes to the home cultivation provisions that will require plants to be labeled with identification information, kept out of sight from public view, and kept out of range of individuals under the age of 21.
EFFECT ON FEDERAL PROHIBITION
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.
The legalization of marijuana for personal use in Virginia takes the next step and removes another layer of laws prohibiting the possession and use of marijuana in the state even though 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.
A GROWING MOVEMENT
Virginia is one of a growing number of states simply 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. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. Earlier this year, New York, New Mexico and Connecticut legalized marijuana through legislative action.
With 36 states allowing cannabis for medical use, and 18 legalizing for adult recreational 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 legalize marijuana for personal use in Virginia demonstrates another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way for medical purposes – it tends to eventually expand. As the state tears down some barriers, markets develop and demand grows. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.
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