Bill to legalize marijuana in Delaware to be filed soon

DOVER — Legal recreational marijuana, long a pipe dream, could soon be reality in Delaware.

Legislation that would allow adults to buy and consume cannabis in the First State is set to be filed in the coming weeks, and though passage is far from certain, the main sponsor is optimistic.

“It’s close, it’s close,” said Rep. Ed Osienski, D-Newark. “We’re talking one or two votes” away from approval by the House of Representatives.

While some details are still being finalized, Rep. Osienski is hopeful the measure will be officially introduced by the time lawmakers return from the February break on March 9.

Currently, 13 states plus Washington, D.C., offer recreational marijuana (not counting New Jersey, which approved legalization through a ballot referendum in November but has yet to put it in place) despite the drug being illegal under federal law.

The Delaware General Assembly approved medical marijuana in 2011, although the first dispensary did not open until 2015, coincidentally the same year legislators decriminalized the drug. The state currently has six “compassion centers” owned by three different companies.

With the prospect of Maryland, Virginia and Pennsylvania approving legalization this year on the horizon, Rep. Osienski said he believes Delaware should act now, although he emphasized the process should still be handled judiciously.

He’s currently tweaking the bill in hopes of gaining the necessary three-fifths supermajority, which is equivalent to 25 votes in the House and 13 in the Senate. Gov. John Carney has consistently opposed legalization, with a spokesman last week declining to speculate what the governor would do if the bill reaches his desk.

Rep. Ed Osienski

Though he has not talked to Gov. Carney about the subject recently, Rep. Osienski speculated the governor could let the legislation become law without signing it, the same thing Tom Carper did with a slots bill in the 1990s.

The forthcoming proposal would set a 15% tax on cannabis, with retail prices being determined by dispensaries, Rep. Osienski said. Unlike most states with legal pot, Delaware would not allow individuals to grow their own marijuana.

“We’re afraid right now it would be opposite what our goal is — to hurt the black market,” Rep. Osienski said.

A separate yet-to-be-introduced bill would allow medical marijuana patients to grow cannabis at home.

While some advocates see legalization as both a fairness issue and a revenue driver, Rep. Osienski believes the emphasis on incoming dollars is overblown. To him, the bill’s primary aim is dealing a blow to the black market, keeping the drug away from minors through regulation.

The bill would also create hundreds of jobs, he said.

Auditor Kathy McGuiness released a report last month predicting legalization could bring in $43 million in annual tax revenue to the state’s coffers and result in at least 1,400 new jobs.

Most of the revenue would not be earmarked for any specific programs or initiatives, although the bill might contain language establishing a social equity fund. Minorities and other groups would likely be able to access grants or low-interest loans to help them get into the market, Rep. Osienski said, with the goal of preventing “Big Marijuana” from dominating the industry like so many other fields.

If the legislation passes, the state’s medical marijuana program would remain separate, enabling some individuals to still obtain cannabis to ease their ailments. Owners of medical marijuana dispensaries could seek licenses to sell recreational cannabis.

Social justice initiatives

The bill has many similarities to a 2019 proposal, which Rep. Osienski also sponsored, although it’s not identical. That measure never received a floor vote, with COVID-19 derailing the expected debate last year.

“The big difference is adding some social equity language to help those from communities that probably have been the most negatively impacted by previous marijuana laws,” he said of the forthcoming legislation.

To social justice supporters, legalization would be an important step toward racial equity: A 2013 American Civil Liberties Union report found Black Americans are about as likely to use marijuana as their White counterparts but are 3.73 times more likely to be arrested for possession of the drug.

“People shouldn’t be punished for smoking marijuana in the privacy of their homes,” Attorney General Kathy Jennings said through a spokesman. “While important questions around the specifics of implementation — including impaired driving and keeping it away from kids — need to be answered, I support legalizing marijuana as the logical answer to an outdated policy that has caused more harm than good, particularly in communities of color.”

The bill would establish about 150 licenses for different steps of the process, from cultivating to testing to selling cannabis, with some reserved for minorities, women and veterans.

There would also be specific licenses for small businesses, Rep. Osienski said, comparing them to craft breweries: “The market will drive it and that’s why we’re excited about the microbusinesses. It’s kind of like Dogfish Head Brewery vs. Budweiser.”

The Division of Alcohol and Tobacco Enforcement would oversee the industry in Delaware.

Public attitudes toward cannabis have changed dramatically in recent years: A Gallup poll conducted in the fall reported 68% of Americans are in favor of legalization, double the percentage from 2003. Democrats and independents in particular are strong supporters of the concept.

A 2018 survey from the University of Delaware’s Center for Political Communication found 61% of residents here back legalization.

Opponents and advocates

Still, opposition persists from some powerful sources.

The Delaware State Chamber of Commerce has been one of the key objectors to prior iterations of the bill, something that has not changed. Kelly Basile, a spokeswoman for the organization, wrote in an email businesses want to be sure they can create their own drug policies, are immune to liability concerns and have an accurate spot test to determine whether someone is currently impaired.

Rep. Osienski said the measure would let businesses adopt whatever anti-drug standards they wish.

Law enforcement also remains broadly opposed, citing concerns about use in public or a vehicle (something that would remain illegal), as well as the bill taking a useful tool away from police. Authorities have said some serious criminal cases involving drug trafficking or illegal firearm ownership start with police smelling marijuana, meaning legalization could be a hindrance to getting the proverbial bad guys off the streets.

“We keep hearing that the legalization of recreational marijuana will eliminate the black market and the criminal activity associated with it. That has not been the case in states where recreational marijuana is now legal,” Delaware Police Chiefs’ Council Executive Director Jeffrey Horvath wrote in an email.

“This legalization of recreational marijuana does nothing to improve public safety and will only make Delaware less safe for our residents and our visitors. If we look to Colorado for the effects of legalized marijuana we can expect increases in both property crimes and violent crimes, increases in impaired driving, and increases in fatal accidents.

“Colorado also experienced a large increase in the illegal use of marijuana by juveniles between the ages of 12 and 17 after they legalized the drug for recreational use by adults. We can not support a law that will have a detrimental effect on public safety.”

Many people have expressed worries allowing recreational marijuana would lead to more individuals using harder substances, although others strongly dispute claims it is a gateway drug.

A 2019 study published in the National Library of Medicine concluded opioid abuse is less common in states with legal marijuana but acknowledged the findings are not definitive. Evidence is mixed regarding the gateway drug hypothesis, and questions remain about the long-term health effects of frequent marijuana use, though it is thought to be harmful for adolescents.

Zoë Patchell, the executive director of the Delaware Cannabis Advocacy Network, is hopeful 2021 will finally be the year Delaware takes the plunge. Lawmakers who vote in favor of legalization are adhering to the will of the public, she said, pointing to polls showing support for the initiative.

Ms. Patchell believes allowing adults to use cannabis will represent a significant step in the criminal justice reform movement, ending a “harmful, wasteful” practice that never should have been instituted in the first place.

She dismissed concerns about legalized weed having myriad negative societal effects, emphasizing that many people already use the drug illegally. Regulating it, Ms. Patchell said, will end “the gateway to the criminal justice system.”

Will legalization puff, puff, pass the legislature? Stay tuned.

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