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After four years of resistance under former Gov. Glenn Youngkin, Virginia now has a governor willing to create a legal retail cannabis market.
But Gov. Abigail Spanberger has suggested changes that, while not necessarily a deal breaker for Democrats, raise concern among supporters about new criminal penalties and how disadvantaged groups will access the commercial market.
Spanberger’s proposal includes several changes to the market itself: pushing the retail sales start date back by six months to July 1, 2027; reducing the initial number of retail cannabis stores from 350 to 200; and reducing the possession limit to two ounces, down from 2.5 ounces.
It also scraps language describing how tax revenue generated from legal cannabis sales would be allocated. The version of the legislation that passed the General Assembly specified 40% would toward early childhood care and education, and 30% would go toward a cannabis equity reinvestment fund that supports people and communities historically been targeted by drug enforcement. A 2019 report from the Joint Legislative Audit and Review Commission found that in Hampton Roads, Black people were between three and six times as likely to be arrested for cannabis possession as white people.
That fund was put into code in 2021, but without a legal market, it remains unfunded.
Under the legislation as it initially passed, half of the cannabis equity reinvestment fund would go toward business loans for impacted licensees — people who have themselves been convicted of cannabis offenses or are family members of someone who has and who now seek to sell cannabis through Virginia’s legal retail market.
“The cannabis industry is only about 29% profitable,” said Chelsea Higgs Wise, executive director of the advocacy group Marijuana Justice. “That’s not a very high success rate because it is such a high capital need for this industry, which is why this fund was created. With the substitute, there is no money that is targeted or aimed to those funds.”
Wise said that was a direct slap in the face to people who will need those capital investments, particularly in an industry that remains federally illegal and thus poses complex banking challenges.
Democrats say they could accept Spanberger’s proposed amendments to legislation, but they have concerns.
“The Governor’s Substitute represents a significant departure from the framework passed by the General Assembly, raising serious concerns about fairness, access and public safety,” said Sen. Lashrecse Aird, D-Henrico, in a statement.
“By making the legal market harder to access, this proposal allows the illicit market to continue to thrive in every corner store in our market,” said Aird, who carried the retail cannabis legislation in the Senate.
Virginia currently exists in a cannabis legal limbo, where people can possess up to one ounce and grow up to four plants, but are unable to legally buy or sell cannabis products.
“The General Assembly has been leading on marijuana legalization for years, and Governor Spanberger is committed to working with patrons to finish the work,” a spokesperson for her administration said in a statement. “Over the past several months, the Governor has heard directly from community advocates, law enforcement professionals, and consumers about the importance of getting this right. The Governor has also spoken with leaders in states across the country about the challenges they faced in successfully creating — and regulating — a retail marijuana market.”
The spokesperson said the amendments were focused on responsibly implementing a safe retail market that funds early child health and workplace development; supports prevention, treatment and recovery services; and makes targeted reinvestments in historically disadvantaged communities.
Bill sponsors also worry harsher penalties Spanberger proposed would undo Virginia’s efforts to decriminalize cannabis.
“Virginians have not been waiting since 2021 for a legal retail marketplace that will expand criminal penalties, introduce new felony tiers for cannabis-related offenses and expose individuals to lifelong prison sentences while Virginia is actively correcting these wrongs,” said Del. Paul Krizek, (D-Fairfax) the bill’s House sponsor, in a shared statement with Aird.
The substitute introduces new criminal penalties for public consumption and transportation of cannabis across state lines. Spanberger proposed a Class 4 misdemeanor for public consumption, which is punishable by a maximum fine of $250. That’s compared to the current $25 fine for a first offense and entry into a substance abuse treatment and/or education program on subsequent offenses.
“The new enforcement policies we believe truly unravel the decriminalization Virginia has put into place,” Wise said. “A civil infraction now turns into a criminal record.”
Spanberger’s spokesperson said that was to bring cannabis in line with existing alcohol open containers and public consumption laws.
The governor’s proposal would make it a Class 2 felony, punishable by between 20 years and a life sentence of imprisonment, for transporting 50 pounds or more of cannabis into Virginia with the intent to sell or distribute.
Wise also criticized Spanberger’s suggested introduction of a mandatory minimum fine of $500 and 50 hours of community service for people under 21 convicted of cannabis possession or consumption. That provision would also include suspending drivers licenses for people over 18.
Spanberger also proposed amendments to legislation that would automatically grant a sentence modification hearing to people convicted of cannabis-related offenses before July 1, 2021. Those amendments create a petition-based system of reevaluating those felony offenses instead.
The bill’s sponsor, Del. Rozia Henson, D-Prince William, said he would vote to accept the amendments in the interest of not letting perfect be the enemy of the good.
“I share the Governor’s commitment to ensuring that violent offenders are not eligible for this relief; and that commitment is reflected in the bill itself, which already excluded individuals convicted of acts of violence under Virginia law,” Henson said in a statement. “What I continue to believe, however, is that this amendment changes something else entirely: whether the people who do qualify will have to find their own way to the courthouse door.”
Kate Seltzer, 757-713-7881, kate.seltzer@virginiamedia.com
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