Virginians Jailed for Weed Will Stay Locked Up Even After Legalization

While there is much to celebrate in the July 1 legalization of adult cannabis use in Virginia, many argue the new law’s failure to address resentencing is a significant flaw: It does not address those currently incarcerated for cannabis charges. The long, complex bill was approved by the legislature late in the 2021 session, amended by Governor Ralph Northam, approved again and signed April 21. While the original bill that Northam and leading Democrats introduced included some resentencing provisions for those imprisoned for cannabis, the issue was sidelined and left out of the final plan. Most of the legislation, including much of the portions dealing with crimes, equity and sales, is slated for a review and second vote in 2022. 

“It’s incredibly disheartening that the legislature elected to delay resentencing and to continue the incarceration and penalization of individuals for a substance they have decided will be legal on July 1,” Jenn Michelle Pedini, who holds leadership positions with both NORML and Virginia NORML, told The Outlaw Report.

“We didn’t get that across the finish line this year, but we’ve got session coming up in 2022, and I suspect that’ll be an issue that’s on the table,” Northam told The Virginia Mercury. Northam’s term ends this year and he cannot run for reelection.Some representatives cited the complexity of the bill and the potential resentencing process, and the insufficient time they felt they had to review the legalization proposal in session as some of the reasons resentencing was put on a back burner. Because adult use was originally scheduled to be allowed in 2024, when legal sales will launch, some also thought there would be time to handle the issue later on. 

But some drug reform advocates see the omission as part of a larger worrisome trend, in which lawmakers are more focused on the retail landscape than on urgent criminal justice concerns like resentencing. 

“Virginia legislators prioritized a commercial market to benefit consumers and entrepreneurs, rather than our family members still locked in Virginia cages,” Chelsea Higgs Wise of Marijuana Justice told The Outlaw Report. “By keeping racial justice advocates outside of racial and social justice conversations, Virginia legislators are able to create meaningless initiatives that are equitable only in name and continuing the cycle of harm.” Marijuana Justice, which played a central role in advocating for racial justice provisions in Virginia’s cannabis legalization for several years, including the adoption of the July 1, 2021, start date, was not invited to the ceremonial signing of the landmark legalization bill in April. Higgs told VPM the exclusion was “heartbreaking.” The ACLU of Virginia and other cannabis reform groups skipped the event in solidarity with Marijuana Justice. 

People who have been arrested for cannabis in Virginia have faced diverse consequences ranging from fines and criminal records, to imprisonment, all of which can block and derail life opportunities in the realms of work, housing, education, health and relationships, among others. According to NBC 12, in 2018 alone, Virginia prosecuted more than 46,000 simple cannabis possession cases, and almost 20,000 people, most of them Black, were found guilty of the misdemeanor, leaving them with a criminal record and, in some cases, fines and jail time.,. 

As reported by the Virginia Mercury, between July 2018 and July 2020, more than 1,000 people were charged with distributing more than a half ounce but less than 5 pounds of cannabis. About 67.5% of them were sent to either jail or prison, with terms ranging from months up to more than a year. Also during this period, 40 people were charged with growing large amounts of pot — some were jailed for six months, while others were sentenced to a median of 10 years in prison.

A 2020 Joint Legislative Audit & Review Commission report found, over the last decade, Black people in Virginia were about 3.5 times more likely to be arrested for cannabis possession than white people. These patterns repeat nationwide. Virginia’s pot decriminalization efforts in 2020 did not address these racial inequities, as The Outlaw Report covered in February. 

Northam and other Democrats have upheld correcting the racial disparities of the War on Drugs as central to their cannabis legalization efforts, and resentencing efforts are naturally a central component of reaching that goal. The current bill does include measures to seal records of past misdemeanor cannabis charges and to allow those charged with other cannabis offenses to petition for record expungement over the next five years or so. 

We asked Pedini of NORML whether they thought resentencing should and would be a priority in Virginia’s 2022 General Assembly. They said it “absolutely” should. But will it? 

“For NORML, yes,” Pedini said. “As for the legislature and administration, that largely depends upon the outcome of the November elections. Vote wisely, Virginia.” 

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