Lawmakers in Virginia Disagree on Cannabis Conviction Re-Sentencing

Adult-use cannabis sales could begin next year in Virginia, but lawmakers in the commonwealth remain at loggerheads over what to do about individuals currently incarcerated on pot-related charges. 

The Virginia Mercury reported that a committee of state Senate and House members “tasked with making recommendations for the legislative session that begins Wednesday concluded its work this week with a proposal to begin recreational sales in 2023—a year earlier than initially planned,” but those lawmakers “said they ran out of time to reach an agreement” on the subject of re-sentencing for cannabis convictions.

The current state of play in Virginia looks quite different than it did last spring, when a Democratic-controlled general assembly passed a bill that made Virginia the first state in the south to legalize recreational pot. 

Virginia’s Democratic Governor Ralph Northam signed the bill into law, hailing it as a new day for criminal justice in the commonwealth.

“What this really means is that people will no longer be arrested or face penalties for simple possession that follow them and affect their lives,” Northam said at the time. “We know that marijuana laws in Virginia and throughout this country have been disproportionately enforced against communities of color and low-income Virginians.”

Last week, as lawmakers convened in the capital city of Richmond, the GOP officially assumed control over one-half of the general assembly. And on Saturday, the Republican Glenn Youngkin was sworn in as the new governor of Virginia. 

The recommendation from the Cannabis Oversight Commission to begin cannabis sales next year came last week ahead of the opening of the legislative session.

Youngkin said in an interview earlier this month that he “will not seek to overturn the law on personal possession,” but the governor-elect—who defeated the Democrat Terry McAuliffe in November—balked on the subject of pot sales.

“When it comes to commercialization, I think there is a lot of work to be done. I’m not against it, but there’s a lot of work to be done,” Youngkin told Virginia Business. “There are some nonstarters, including the forced unionization that’s in the current bill. There have been concerns expressed by law enforcement in how the gap in the laws can actually be enforced. Finally, there’s a real need to make sure that we aren’t promoting an anti-competitive industry. I do understand that there are preferences to make sure that all participants in the industry are qualified to do the industry well.”

The subject of how to handle individuals currently serving time for cannabis didn’t come up in that interview, nor was it addressed by the legislative committee last week.

The Virginia Mercury reported that the “Virginia Department of Corrections says 10 people are currently serving sentences in which the most serious offense was marijuana,” and that in “all of the cases, the people were convicted of transporting five or more pounds of marijuana into the state.”

“All 10 are expected to be released in the next six years, according to the department, which presented the data Monday to the assembly’s Cannabis Oversight Commission,” according to the report. “Another 560 people are serving sentences partially related to a marijuana offense but have also been found guilty of more serious offenses.”

In the interview with Virginia Business earlier this month, Youngkin did discuss the potential economic windfall from legalization, particularly for minority communities.

“I am all for opportunities for minority-owned businesses, women-owned businesses [and] military-owned businesses,” he said. “We also have to make sure that they have the capabilities to compete and thrive in the industry. So, I think there’s work to be done. All of that will be on the table. Again, I don’t look to overturn the bill, but I think we need to make sure that it works.”

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New Virginia Governor Expresses Concerns About Cannabis

Virginia made history last year when it became the first state in the South to legalize recreational pot, but that came at a time when Democrats controlled the state government.

Now, with Republican Governor-elect Glenn Youngkin set to take office in less than two weeks and the GOP ready to assume control of one-half of the general assembly, the state of legalization in the commonwealth looks a bit hazier than it did nine months ago.

But in a new interview, Youngkin says he isn’t going to pull the plug on the new law entirely.

“I will not seek to overturn the law on personal possession,” Youngkin said in an interview with Virginia Business that was published on Friday.

When it comes to setting up a new marijuana market, however, the incoming governor is less sure.

“When it comes to commercialization, I think there is a lot of work to be done. I’m not against it, but there’s a lot of work to be done,” Youngkin said in the interview. “There are some nonstarters, including the forced unionization that’s in the current bill. There have been concerns expressed by law enforcement in how the gap in the laws can actually be enforced. Finally, there’s a real need to make sure that we aren’t promoting an anti-competitive industry. I do understand that there are preferences to make sure that all participants in the industry are qualified to do the industry well.”

In April of last year, Virginia’s outgoing governor, the Democrat Ralph Northam, signed a bill into law legalizing possession of cannabis for adults aged 21 and older. The legislation passed the Democratic-controlled General Assembly weeks before, making it legal to possess up to an ounce of pot as of July 1, 2021. 

“What this really means is that people will no longer be arrested or face penalties for simple possession that follow them and affect their lives,” Northam said at the time. “We know that marijuana laws in Virginia and throughout this country have been disproportionately enforced against communities of color and low-income Virginians.”

The law also established a framework to set up a market for cannabis cultivation and sales, although such businesses were likely years away from opening their doors to customers. 

Northam’s administration has said that the newly created Cannabis Control Authority, authorized under the new law to regulate Virginia’s marijuana industry, “will work to create a fair and equitable regulatory structure and provide critical guidance to the CCA’s staff as they work to develop a workforce, establish regulations and ensure that marijuana legalization accomplishes the health, safety and equity goals established by law.”

According to the CCA, it “will not be legal to sell marijuana before 2024,” and that “it remains a crime to sell any amount of marijuana” until then.

“If the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023,” the agency says on its website.

Youngkin’s comments may cast doubt on the prospects of commercialization. In November, he defeated the Democrat Terry McAuliffe to become the next governor, while Republicans re-claimed control of the House of Delegates. (Democrats still maintain a slim majority in the Senate.)

In his interview with Virginia Business, Youngkin, who will be sworn in as governor on January 15, spoke positively of some of the opportunities presented by legal weed sales.

“I am all for opportunities for minority-owned businesses, women-owned businesses [and] military-owned businesses,” Youngkin said. “We also have to make sure that they have the capabilities to compete and thrive in the industry. So, I think there’s work to be done. All of that will be on the table. Again, I don’t look to overturn the bill, but I think we need to make sure that it works.”

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Virginia Has Sealed 64,000 Cannabis Distribution Charges

More than 64,000 misdemeanor charges related to distribution of cannabis have been sealed in Virginia since July, when pot legalization officially took effect in the commonwealth.

The figure emerged last Thursday “during a meeting of the legislature’s Cannabis Oversight Commission,” according to the Virginia Mercury.

“Officials said the records were scrubbed from the state’s criminal record database, which is used by employers like school boards, state agencies and local governments to screen employees,” the website reported, and it comes after Virginia “had already sealed 333,000 records detailing charges of simple possession last year after the state reduced the offense to a civil infraction on par with a traffic offense.”

In April, Virginia Governor Ralph Northam signed legislation into law that made the state the first in the South to legalize recreational pot use for adults, a major step forward for the region, and a reform that the Democrat characterized as a step toward “building a more equitable and just Virginia and reforming our criminal justice system to make it more fair.”

“What this really means is that people will no longer be arrested or face penalties for simple possession that follow them and affect their lives,” Northam said during a press conference at the time. “We know that marijuana laws in Virginia and throughout this country have been disproportionately enforced against communities of color and low-income Virginians.”

Although retail sales in Virginia are still likely years away, the new law took effect on July 1. On that day, adults in the commonwealth could legally possess up to an ounce of cannabis and grow up to four weed plants at home.

Since then, Virginia’s new law has continued to take shape. Weeks after it took effect on July 1, Northam announced “appointments to the three newly-created boards responsible for overseeing the legalization of recreational marijuana in the Commonwealth.”

The law created a regulatory agency known as the Cannabis Control Authority that will oversee the state’s new marijuana market.

“In the coming years, the Board will work to create a fair and equitable regulatory structure and provide critical guidance to the CCA’s staff as they work to develop a workforce, establish regulations and ensure that marijuana legalization accomplishes the health, safety and equity goals established by law. Board members cannot have financial interests in the cannabis industry,” the governor’s office said at the time.

The Cannabis Control Authority has stated that it “will not be legal to sell marijuana before January 1, 2024.”

“While the Cannabis Control Authority can begin its work on July 1, 2021, it will take time for the authority to hire staff, write regulations and implement equity and safety initiatives,” the authority explained. “Additionally, many of the regulatory sections of the bill must be reenacted (approved again) by the 2022 General Assembly before becoming law.”

After unveiling the five appointments to the board, Northam said that “Virginia is committed to legalizing cannabis the right way—by learning from other states, by listening to public health and safety experts and by centering social equity.” 

“There is a tremendous amount of work ahead to establish an adult-use marijuana market in our Commonwealth, and I am proud to appoint these talented Virginians who will bring diverse backgrounds, an incredible depth of expertise and a shared commitment to public service to this important effort,” Northam said in a statement.

The sealing of the misdemeanor distribution charges last week is part of the Virginia legislature’s “broader expungement reform that will automatically seal other misdemeanor charges, including underage possession of alcohol, use of a fake ID, petit larceny, trespassing and disorderly conduct,” according to the Virginia Mercury.

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Virginia Domestic Violence Victim Charged for Cannabis Consumption During Court Testimony

A Virginia Circuit Judge stopped a domestic violence victim mid-testimony to jail her for alleged cannabis use.

Loudon County Circuit Judge James P. Fisher in Virginia, who was recently presiding over a domestic violence case, sentenced the victim to 10 days in jail after she admitted that she smoked cannabis earlier that day. Fisher had her removed from the stands mid-testimony by multiple deputies, as described by a brief from the Office of the Commonwealth’s Attorney. The victim served two days in jail, and was released on a bond of $1,000.

According to Assistant Commonwealth’s Attorney Elena Ventura, the victim received less than ideal treatment. “In the middle of a difficult (cross examination), she was detained, interrogated, arrested and removed from the courtroom,” the situation is cited in the brief, according to the Virginia Mercury. Ventura also described her as “not treated with the respect, sensitivity or dignity required by law.”

The brief mentions that the victim was visibly nervous as she testified for an hour-and-a-half. Her abuser had been found guilty of abuse twice in the past. However, the brief states that despite the nature of the case and the victim’s mental state, Fisher proceeded with “intense and assertive questioning focused on drug-addiction and infidelity.” He spoke with detectives who had spoken with her before the trial, and described her behavior as consistent and showed no signs of impairment or intoxication.

According to the authors of the brief, Fisher’s reaction poses a threat to future cases which “may create a chilling effect surrounding victim willingness to testify in cases of domestic violence, an area of law already replete with victims recanting and/or refusing to cooperate, due to the extensive trauma domestic violence victims experience through the cycle of power and control, especially in cases where victims have mental health concerns, as… in the case at bar.”

Unfortunately, Fisher has had similar reactions on previous cases in the past. He sentenced a divorce lawyer to one night in jail for contempt of court when she asked him to clarifying his ruling. However, it is within his right as a judge to pose a $250 fine and jail individuals for up to 10 days if they misbehave, exhibit violent behavior, or use inappropriate language, according to the Virginia contempt statute.

The attorney who is representing the victim, Thomas K. Plofchan, Jr. of Westlake Legal Group, also supported the claim that she did nothing wrong, and didn’t deserve to be treated in that manner. “She did not admit to doing any illegal activity nor did she admit to being under the influence in the courtroom,” Plofchan, Jr. states. “There was no slurring of her words, nothing that indicated that she had taken some sort of intoxicant that affected her speech or muscular movement.”

Even local legislators, such as Senator Jennifer Boysko, a representative of Loudoun County, noted that there’s a history of not protecting victims in cases such as these, when instead they should be treated with “respect and dignity.” Likewise, Senator Scott Surovell brought up the question of how things would have proceeded if she had admitted to consuming alcohol earlier that morning instead of cannabis.

Recreational cannabis possession and cultivation has been legal in Virginia since July 1, although sales aren’t expected to occur until January 1, 2024. Although this is progress for southern states such as Virginia, there is clearly still more that needs to be done so that cannabis consumption isn’t grounds for punishment in an unrelated case. For now, a hearing is set for next week to vacate the contempt charge.

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Cannabis-Related Arrests in Virginia Decrease By 90 Percent After Legalization

Virginia cannabis law went into effect on July 1, 2021, and in a little over two months since that starting date, the county of Richmond has experienced a shocking decrease in cannabis-related arrests. 

The new law legalizes cannabis possession up to one ounce, as well as cultivation of up to four personal plants per household, but requires that the grower tags their plants with their driver’s license/ID and a note saying that they are being grown for personal use.

According to the Richmond Times-Dispatch, cannabis arrests have decreased by 90 percent in the state’s capitol. During the first seven weeks of the law’s enactment (with data collected from July 1 to August 20), reports show that there were 20 arrests in Chesterfield, two in Henrico, zero in Hanover and three in Richmond for a total of 25 arrests. In July and August of 2020, there were 257 arrests.

“A 90 percent reduction in marijuana arrests indicates that the public policy is performing as intended and in a manner that is consistent with post-legalization observations from other states,” said National Organization for the Reform of Marijuana Laws development director and executive director of the Virginia NORML chapter Jenn Michelle Pedini.

Due to the newness of the law’s enactment, some of the offenders claim to be unaware of what the law does and does not allow. Ten of the arrests ranged between 18 to 20 years of age and were charged with underage possession (which is only a civil penalty). The law states that anyone over age 21 may possess up to one ounce of cannabis, but consuming in public is prohibited. Seven of the 20 people who were charged with cannabis-related arrests were 16 or 17 years old.

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Virginia Clarifies New Law

Chesterfield Police Chief Jeffrey Katz shared that his law enforcement officers haven’t “shied away” from current laws, and that it’s important to arrest people in the name of public safety. While they’re not seeking out cannabis-related arrests, they will make a charge if it’s applicable.

Some of the recorded arrests were for more than just underage possession, though. One individual from Chesterfield was caught growing an estimated 50 cannabis plants and also could not provide the grower’s name or driver’s license to prove that they were permitted. 

Prior to the new law’s enactment, Katz released a statement on Facebook on June 25, along with a Chesterfield County Police educational YouTube video, trying to help the local community understand what the law entails. 

“Virginia, we have a problem. A lot of folks believe that as of July 1, 2021, the possession and use of marijuana is legal within the Commonwealth. In reality, it’s not that simple,” he shared. “We feel an obligation to those we serve to provide a little context into some of the more granular nuances of this widely misunderstood legislation… but even this brief animated summary doesn’t replace an in-depth review of the law as passed. The devil is in the details, as they say… and like all laws passed by our legislature, it is our charge to encourage compliance and enforce violations. Ignorance of the law isn’t a defense, so we encourage everyone to be both informed and safe.” 

Katz isn’t a supporter of the law as it currently stands. He tells the Richmond Times-Dispatch that although possession is allowed, there aren’t any sales fronts for people to purchase cannabis from. Instead, they must either grow their own plants or revert to buying cannabis off the black market. Cannabis sales regulations aren’t expecting to roll out until January 1, 2024, although there are efforts underway to try for an earlier start.

According to New Frontier Data, cannabis-related arrests have been decreasing steadily since 2017. There were an estimated 27,852 total cannabis arrests in the state of Virginia in 2017, 28,866 in 2018, 26,470 in 2019 and a dramatic decrease of 13,674 in 2020.

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Virginia Lawmakers Push for Earlier Launch of Cannabis Retail Sales

Virginia state lawmakers are calling for an earlier start to licensed sales of recreational marijuana, arguing that the delay between the legalization of cannabis possession and the launch of regulated retailers will encourage illicit sales. But some legislators are wary that the idea could jeopardize the state’s cannabis social equity program before it gets off the ground and are urging their colleagues to proceed with caution.

At the inaugural meeting of Virginia’s Joint Commission on Cannabis Oversight on Tuesday, Democratic Delegate Paul Krizek told his fellow lawmakers that marijuana reform as it now stands leaves the state’s residents in a legal quandary.

“We have legalized the use of marijuana, but we have not legalized the actual purchase of marijuana,” said Krizek.

“What we need to do is get the safe sales of marijuana out there as soon as possible,” he added.

Virginia Cannabis Possession Legalized In July

In April, Virginia state lawmakers passed a bill to legalize the sale and use of recreational marijuana. Under that legislation, personal possession of cannabis became legal on July 1. But licensed sales of recreational marijuana are not slated to begin until 2024, a delay designed to give regulators time to draft rules and issue licenses to adult-use cannabis businesses. At Tuesday’s meeting, Krizek said that the lack of licensed retailers can be confusing for consumers, who may mistakenly buy from illicit suppliers.

“People know it’s legal, and they probably think they can buy it legally. And it’s going to become more and more difficult to explain that to the general public,” he said. “We don’t want to facilitate an illegal market out there.”

Several lawmakers have expressed support for a proposal that would allow the state’s existing medical marijuana dispensaries to sell recreational cannabis to all adults 21 and older. Under current regulations, medical marijuana dispensaries are only permitted to serve patients registered with the state pharmacy board.

The proposal would require medical marijuana dispensaries that wish to serve adult-use customers to serve as a business incubator for five applicants that qualify for the state’s upcoming cannabis social equity program, which is designed to help ensure that members of communities most impacted by the failed War on Drugs have a path to business ownership in the legal market.

Ngiste Abebe, the vice president of public policy at medical marijuana licensee Columbia Care, told local media that the plan to allow recreational cannabis customers to purchase at medical dispensaries would be a benefit for consumers and the nascent industry.

“Every other state that has legalized cannabis has leveraged their existing medical market to not just increase access but generate the tax revenue and funds for social equity priorities,” said Abebe.

Not All Lawmakers On Board With Early Launch

However, not all lawmakers are in favor of an early launch for retail cannabis sales in Virginia. House Majority Leader Charniele Herring, also a Democrat, is concerned that the plan could work against the goals of the social equity program, noting that other state programs designed to help businesses owned by women or people of color have not always been successful.

“A minority or woman is brought in, and a company says, ‘We’ll incubate you. You’re a partner. Wink,’” Herring said. “Then they get access to a social equity license. It does harm to the whole spirit of what we were trying to do.”

The majority leader warned her colleagues in the legislature to consider all consequences of changing the current legalization timeline.

“If we go down that route, let’s really be careful,” Herring said of the plan for early recreational cannabis sales, “because we do not want to make the mistakes of the past, where it’s not in the spirit of what was intended.”

Democratic Senator Adam Ebbin, the chair of the joint oversight commission, said it is too early to know if moving up the launch of retail cannabis sales will be translated into a bill for the next legislative session, which begins in January. But he said the matter is “an important issue to flag.”

“It’s worthy of this subcommittee to consider if it can be done while still ensuring robust participation by social equity applicants,” he said.

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Episode 359 – No Marijuana for Mississippi

Dr. Jahan Marcu, Heather Sullivan, and Paul Rosen join host Ben Larson to talk about the rejection of medical marijuana legalization by the Mississippi Supreme Court, the merger of Tilray and Aphria as well as other large cannabis acquisitions, as well as the current state of legal hemp and delta-8 THC. Produced by Shea Gunther.

Photo: Tony Webster/Flickr/