Up in smoke: Legal weed bill stalls, for now

By Matt Bittle
Posted 6/25/21

DOVER — Just a few weeks ago it appeared Delaware was, after a couple of false starts, poised to legalize marijuana. Those hopes will now have to wait until at least January.

A couple of …

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Up in smoke: Legal weed bill stalls, for now


DOVER — Just a few weeks ago it appeared Delaware was, after a couple of false starts, poised to legalize marijuana. Those hopes will now have to wait until at least January.

A couple of hours before a scheduled vote on June 10, legislation to allow adults to buy and use cannabis in Delaware was pulled from the House agenda. Now, with the regularly scheduled 2021 legislative session poised to end after Wednesday, the main sponsor has acknowledged those hoping to legally toke up in the First State will have to wait at least a little longer.

“The effort to legalize adult recreational marijuana is not just about ending the prohibition on cannabis use. Part of our effort has been to level the playing field for those most impacted by the failed war on drugs,” Rep. Ed Osienski, a Newark Democrat, said in a statement.

“However, including our proposed social equity fund would make House Bill 150 a 3/4 majority bill, per the Delaware Constitution. Simply put, we do not have the 31 votes necessary to pass the bill in its current state. However, removing the fund — which would restore the original, attainable 3/5 majority — would create other concerns about our commitment to those communities.

“My charge at this stage is to find a compromise that all supporters can rally behind. When we reach that compromise, I will bring HB 150 forward for consideration. I am committed to continuing to work with all parties to find a solution that allows Delaware to become the next state to legalize adult recreational marijuana.”

House Bill 150 would let individuals age 21 and older buy up to 1 ounce of marijuana from licensed retail stores, though Delawareans would not be allowed to grow their own cannabis.

Using marijuana in public or a vehicle would remain against the law, and employers would still be able to make their own policies prohibiting usage.

The measure would regulate marijuana like alcohol, creating a separate Office of Marijuana Control and commissioner under the Division of Alcohol and Tobacco Enforcement.

Up to 30 retail licenses would be issued within 16 months of the bill’s effective date, with applicants selected based on a series of criteria, including wages paid to employees and diversity of workforce. There would be separate licenses for other stages of the process, like growing and distributing marijuana.

The initial licenses would fall into three categories: open competition, social equity and microbusiness, with the social equity licenses being reserved for individuals who live in areas “disproportionately impacted” by marijuana prohibition. Those specific locations would be selected by the appointed Delaware marijuana commissioner based on areas “that have high rates of arrest, conviction, and incarceration relating to the sale, possession, use, cultivation, manufacture, or transport of marijuana.”

Licenses would also be set aside for people who were convicted of a marijuana-related crime or are closely related to someone convicted of such an offense.

The state’s medical marijuana program would remain unchanged.

The chief sticking point right now is altering the bill to lower the vote threshold from 31 to 25. Rep. Osienski, who filed the bill in March, initially believed it would need only 60% of legislators rather than the highest level in state law. It’s since become clear that view was incorrect.

Members of the Delaware Legislative Black Caucus have expressed opposition to eliminating the social equity fund, arguing people of color have been disproportionately impacted by marijuana prohibition and should be, in a sense, compensated.

Thus, while removing the language creating the fund would cause the legislation to need six fewer votes to pass, it would also siphon off votes. And the odds of the measure receiving the requisite support without most of the nine House members of the Black Caucus are basically nil.

It is true that anti-marijuana laws have hit communities of color especially hard: A 2013 American Civil Liberties Union report found Black people are 3.73 times more likely to be arrested for possession of marijuana than their White counterparts, even though the two groups are about as likely to use the drug.

Part of that disparity stems from the war on drugs launched by the administration of President Richard Nixon in the late 1960s and early 1970s. That crusade was at least partially due to a desire to crush political opponents, chiefly “the anti-war left and Black people,” as domestic policy adviser John Ehrlichman admitted years later.

Public attitudes toward the drug have changed dramatically in recent years: A Gallup poll conducted in the fall reported that 68% of Americans are in favor of legalization, double the percentage from 2003. A 2018 survey from the University of Delaware’s Center for Political Communication, meanwhile, said 61% of residents here back legalization.

Eighteen states, including New Jersey, Virginia, New York and most of New England, have passed recreational cannabis laws. Five have done so in 2021 alone.

Some legislators in Delaware first attempted to legalize the drug in 2017, although that bid was unsuccessful. An attempt in 2019 also failed.

Supporters had hoped this time would be different, and the lead sponsors had expressed optimism about passage. But now, as with many controversial pieces of legislation, backers must walk the tightrope of making changes to secure votes while not losing current support. Removing a provision requiring a union workforce, for instance, might shift some Republicans in favor of the bill but at the expense of Democratic votes.

Most members of the GOP figure to be dead set against approving a recreational marijuana policy, with only one House Republican supporting the first legalization bill a few years ago. That legislator, Rep. Jeff Spiegelman, does not back the current proposal.

The Clayton-area representative detailed several concerns in an opinion piece earlier this month, including the union requirement, too much red tape and the social equity fund.

Calling the legislation “not a well-written bill,” he acknowledged he might support a heavily modified version.

Ten amendments, nearly all of which were filed in the days immediately preceding the planned vote and four of which were introduced by Rep. Osienski, are awaiting action. They cover various areas of the bill, from allowing counties to prohibit marijuana facilities in their jurisdictions to adding stricter rules around packaging to changing language about what qualifies as a disproportionately impacted area.

The bill also faces opposition from law enforcement and Gov. John Carney. Asked during his weekly press conference earlier this month if he would veto the bill should it reach his desk, he declined to say.

“It’s well known that I oppose the legislation and I don’t need to get into all the reasons,” he said. “I just think it’s a bad thing. ... I spent eight years as lieutenant governor trying to get Delawareans to stop smoking, etc. etc. There are some flaws with the legislation itself and so we’ll have to see what the legislature does and take it at that point.”

He could allow it to become law without signing it, thus avoiding a veto that would anger many fellow Democrats. Of course, that point is moot if the bill never gets to him in the first place.

Zoë Patchell, president of the Delaware Cannabis Advocacy Network, is disappointed and frustrated Delawareans will have to keep waiting for legal marijuana.

As long as cannabis remains illegal, individuals — especially those of little means and people of color — will continue to be penalized for a victimless crime, she said. Like some other advocates, she plans to use the next six months before the General Assembly returns to attempt to sway members toward legalization.

“We’re going to be working really hard to try to get lawmakers to come together and move forward with this common-sense policy,” she said.

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