DOVER, Del. (June 28, 2024) – On Tuesday, the Delaware Senate gave final approval to a bill that would provide marijuana businesses operating in the state better access to banking and insurance services. The enactment of this legislation would remove a roadblock in front of the developing cannabis industry in Delaware and further nullify federal cannabis prohibition in practice.
Rep. Edward Osienski and a large bipartisan coalition of cosponsors introduced House Bill 355 (HB355) on March 21. The legislation would clarify that banks, credit unions, armored car services, and accounting services are not subject to prosecution under state law for simply working with legal cannabis businesses.
On June 25, the Senate passed HB355 by a 16-5 vote. The House had previously approved the measure by a 38-0 vote. It now goes to Gov. John Carney’s desk for his consideration.
According to the bill’s synopsis, “This Act aims to facilitate the operation of cannabis-related businesses by helping to ensure that such businesses have access to necessary financial and accounting services.”
In a press release, State Treasurer Colleen Davis said, “HB355 will provide state-level legal protection and a clear legal framework for banks, payment processors, and other financial service providers to follow.”
She also said that the law would make banks more comfortable serving the state’s marijuana industry despite federal banking regulations that prohibit it.
“It can also ease concerns about federal enforcement and regulatory compliance among these businesses—since it allows them to demonstrate to federal agencies that they’re following a clear legal framework, ultimately leading to a safer and more transparent marijuana industry.”
The bill is intended to allay fears that banks will be prosecuted or penalized for taking in marijuana-related accounts. The Federal government has used banking laws as a weapon in its unconstitutional war on cannabis by making it impossible for marijuana businesses to access the banking system – even in states where marijuana has been legalized. The feds can prosecute bankers for knowingly engaging with cannabis businesses under the Bank Secrecy Act, the USA Patriot Act, and the Racketeer Influenced and Corrupt Organizations (RICO) Act.
While the enactment of HB355 would not stop potential federal prosecution of a financial institution engaging in the medical marijuana business, it would eliminate the fear of state prosecution and cooperation with the feds.
Federal authorities depend on state cooperation to enforce virtually all of their laws. Without state cooperation, it is less likely banks will face prosecution.
EFFECT ON FEDERAL PROHIBITION
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains a 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.
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. The state legalized marijuana for adult use in 2023. These laws progressively removed a huge layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition remains 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. In 2021, New York, New Mexico, Virginia, and Connecticut legalized marijuana through legislative action, and Rhode Island legalized cannabis for adult use in 2022. Missouri and Maryland legalized marijuana in November 2022. Ohio voters approved marijuana for adult use in the November election. Currently, 38 states allow cannabis for medical use, and 24 have legalized it for recreational use.
The lesson here is pretty straightforward. As Tenth Amendment Center Executive Director Michael Boldin noted, “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 introduction of HB355 demonstrates another important reality. Once a state puts laws in place legalizing cannabis, they tend to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. This bill represents a further erosion of unconstitutional federal marijuana prohibition. It also demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Opening the door clears the way for additional steps. You can’t take the second step before you take the first.
WHAT’S NEXT
If the legislature transmits HB355 to Gov. Carney’s office before the session ends (Scheduled for June 30), he will have 10 days to sign or veto the bill. If he takes no action, it will become law without his signature. If the bill is transmitted after the session ends, the governor will have 30 days and if he fails to act, the bill would be pocket vetoed.
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