Virginia Watchdog Suggests Adding Misdemeanor Penalties For Cannabis. Advocates Say It’s a Bad Idea.

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A Virginia government watchdog is recommending significant changes to the state’s cannabis laws just weeks before possession is set to become legal, and as regulators prepare for the launch of recreational sales in 2024.

In a report published last week, the Joint Legislative Audit and Review Commission (JLARC), a state-funded group that keeps tabs on Virginia government agencies, suggested establishing misdemeanor penalties for possessing larger amounts of cannabis.

In April, Virginia’s General Assembly approved a bill to legalize simple possession and home cultivation by July 1, three years earlier than planned. Under the new legislation, possessing up to one ounce of cannabis will be completely legal. However, possessing between one ounce and one pound will result in a $25 fine, and possessing more than a pound will be considered a felony.  

The JLARC report suggests a more incremental penalty structure that would include a misdemeanor offense and higher fines for amounts between 2.5 ounces and one pound.

“In contrast with other states, Virginia’s penalty structure for illegal possession escalates from a civil penalty directly to a felony offense,” the report says. “All other legalized states have a misdemeanor charge for possession above the legal amount.”

Some advocates say they’re disappointed by JLARC’s recommendations. They argue that misdemeanor penalties and higher fines would do more harm than good, particularly for communities of color who have been harmed by punitive drug laws.

“I think it’s really important that we understand that this misdemeanor means that people are not just receiving a civil penalty or a civil ticket like a traffic ticket––they’re now going to criminal court to deal with this,” said Chelsea Higgs Wise, executive director at Marijuana Justice.

Higgs Wise said that adding misdemeanor charges defeats the purpose of legalizing cannabis in the first place, and contradicts efforts by Virginia’s General Assembly to address racial injustices perpetrated by the War on Drugs. 

“There was no reason for this recommendation,” she said. “It is in high contrast to our commitment to racial equity this past year with the bill, as well as our commitment to reconciliation in 2019.”

Many states that have passed legalization bills use incremental penalties for possession that range from a simple fine to a misdemeanor, followed by a felony charge. In Colorado, possessing between 6 and 12 ounces of pot is a misdemeanor offense that can lead to up to 18 months in jail and a maximum fine of $5,000.

But Higgs Wise said Virginia shouldn’t arbitrarily base its laws on what other states are doing. 

“Do we just want to do better at how the other states have done, knowing the other states have also done really wrong and are constantly updating their laws?” she said. “Or do we just want to do right by our Virginians that we know have been targeted for decades now?”

The JLARC report also calls for state legislators to grant regulators more time to establish a regulated market for cannabis before sales begin in 2024. The current law requires the Virginia Cannabis Control Commission to start accepting cannabis license applications on July 1, 2023, only 6 months before sales begin. The report suggests moving that date up to January 1, 2023 to give regulators one full year to prepare for recreational sales.

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