DOVER, Del. (May 15, 2022) – On Thursday, the Delaware Senate gave final approval to a bill that would legalize marijuana for adult use in the state despite federal marijuana prohibition.
Rep. Ed Osienski (D) introduced House Bill 371 (HB371) in March. The legislation would remove all penalties for adult marijuana possession, allowing adults 21 and over to possess and share up to one ounce of marijuana. In effect, it would legalize possession of marijuana, but it would not allow for the sale of cannabis.
On May 12, the Senate passed HB371 with no amendments by a 13-7 vote. The House approved the measure by a 26-14 vote earlier this month. The bill now goes to Gov. John Carney’s desk for his consideration.
Meanwhile, a second bill sponsored by Osienski (HB372) that would create a licensing and regulatory program for the cultivation, manufacturing, and sale of marijuana cleared the House Appropriations Committee on May 11 and can now move to the House floor.
Osienski sponsored a bill (HB305) earlier in the session that would have accomplished both goals, but the legislation failed to garner the necessary supermajority in order to pass the House. Instead of giving up, Osienski adopted a two-track strategy. The decriminalization bill only needed a simple majority to pass. According to Marijuana Moment, legalizing marijuana possession would put extra pressure on legislators to advance the complementary legislation with a supermajority, rather than have legalization without regulations in place.
EFFECT ON FEDERAL PROHIBITION
Delaware legalized medical marijuana in 2011 and decriminalized the possession or consumption of a “personal-use quantity” of marijuana for adults 21 or over in 2015. Last year, the state decriminalized marijuana possession by minors despite ongoing federal cannabis 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 Delaware would take the next step and remove 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
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, Virginia and Connecticut legalized marijuana through legislative action.
With 37 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 move to legalize recreational marijuana in Delaware highlights another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – the law 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.
Gov. Carney will have 10 days from the date HB371 is transmitted to his office to sign or veto the bill. If he takes no action, it will become law without his signature.
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