Marijuana Is Legal In Virginia. But Criminal Justice Advocates Say There's More Work To Do
- Written by Hannah Schuster and Jonah Grinkewitz
- Category: Local News
- Published: 01 July 2021
Jordan Anderson was in court Tuesday morning charged with possessing an ounce and a half of marijuana.
He pleaded guilty to a misdemeanor. But only two days later that offense was downgraded to a civil penalty.
Starting July 1, it’s legal to possess up to an ounce of weed in Virginia. The state also readjusted penalties for a range of marijuana-related offenses. Now anyone caught with between an ounce and a pound of weed faces a small fine for a first offense or a fine and drug counseling for a second.
“It’s kind of annoying,” said Anderson, who owns a food truck in Forest, Va. near Lynchburg. “Just the amount of people that have been incarcerated or [had] these charges over simple possession.”
Under the new law, the state will eventually seal records of marijuana convictions for people like Anderson. But his case illustrates the long road ahead as Virginia reckons with the far-reaching impacts of marijuana enforcement, particularly for Black and brown Virginians.
Advocates and Democratic lawmakers lauded marijuana legalization as a major victory, framing it as a racial justice issue. But they say more progress is necessary. While the bill included provisions to seal records of past convictions, lawmakers did not reach a deal to resentence people still in jail or prison on marijuana charges.
'Legalize It Right'
In the final hours of this year’s legislative session, after much last-minute wrangling, the General Assembly reached a deal to legalize marijuana -- but not until January 2024. Legal sales would begin at the same time.
But after a push from advocates, lawmakers agreed to speed up the timeline, even though sales still will not begin for nearly three years. Activists stressed the need to #LegalizeItRight by immediately removing or altering the penalties for possession and other low-level offenses.
Advocates and lawmakers acknowledge that legalizing weed before anyone can legally purchase the plant is likely to cause some confusion. But they say the goal of expediting legalization was to minimize serious racial disparities that persist in enforcement of marijuana laws -- even after Virginia decriminalized possession in 2020.
Short of full legalization, last year Virginia replaced the criminal penalty for carrying an ounce of weed with a civil violation. Over the next six months, roughly 4,500 people were charged with simple possession, according to data from the Office of the Executive Secretary.
Fifty-two percent of those people were Black, even though only about 20% of Virginia’s population is Black.
Studies show that white and Black Americans use weed at similar rates.
Meanwhile, advocates say, people of color continued to face barriers in areas like employment and housing because of past marijauan convictions.
Lingering Impacts of Marijuana Enforcement
Jordan Anderson owns a food truck in Forest, Va. He makes Viatnamese-inspired rice bowls at an outdoor food court called The BackYard.
“I grew up cooking,” Anderson said. “My dad has a catering business.”
Now that he has his own business, Anderson says he has no plans to work for anyone else ever again. But if he were job hunting, the 23-year-old knows having a record would present a major obstacle.
Anderson faced one prior marijuana charge: In 2019, he was sentenced to two months in jail for misdemeanor possession with intent to distribute.
“Before I got my first charge, I was able to go anywhere and get a job. I worked at some of the best restaurants in Lynchburg. I worked at some of the biggest factories in Lynchburg,” he said. “And afterwards, I came home and I couldn’t find a job for six months.”
Portsmouth Del. Don Scott, also a lawyer, represented Anderson in that 2019 case.
“Marijuana has been the boogie man for so long,” he said.
The new marijuana law lays out a gradual process for dealing with past marijuana convictions. Immediately, on July 1, records of misdemeanor convictions for possession with intent to distribute marijuana will automatically be sealed in the Virginia State Police system.
Records of simple possession were previously sealed in 2020, after marijuana was decriminalized.
But other state and private entities -- like the courts -- have until July 1, 2025 to seal the records in their systems. People with felony marijuana convictions can also have their records sealed, but they’ll have to file a petition in court.
Chelsea Higgs Wise is executive director of Marijuana Justice, an advocacy group based in Richmond.
She does not think it’s realistic to expect background screening services, which have collected publicly available information over the years, to follow through on sealing their own personal records.
“Guaranteeing that this is actually sealed information is something that the state cannot do anymore,” Higgs Wise said. “Our information is just out there.”
Chad Rogers, a Lieutenant with the Virginia State Police, said there is confusion about the difference between sealing and expunging records. This bill does not actually expunge prior convictions.
“Sealing does not mean ‘destroy every vestige of this offense,’” he said. “Sealing simply means we are going to tell our computer system, ‘You will not release this information unless.’”
The law gives 25 circumstances where the records would be released, including when someone attempts to to purchase a firearm or applies for a job with the Virginia State Police or Department of Motor Vehicles.
Rogers said nearly 65,000 marijuana distribution charges will be sealed in their system on July 1. The VSP previously sealed close to 334,000 marijuana possession charges in 2020.
Lawmakers will also have to vote again next year on a plan to reevaluate the sentences of people still incarcerated on marijuana charges.
Data from the Virginia Criminal Sentencing Commission suggests that would have a real impact.
In the previous two years, 38% of people charged with simple possession were sentenced to jail time, with a median sentence of three months. Ten percent of people were sentenced to prison, with a median sentence of one-and-a-half years.
Del. Scott advocated for the resentencing provisions in the bill. He says it’s critical to take a second look at these cases as the state plans to launch a recreational sales industry.
“We cannot have distribution centers sitting in these same communities where people have literally lost their lives and their youth because they were charged with possession with intent to distribute,” Scott said.
New Penalties Raise Concerns
Legalizing marijuana marks a dramatic shift in Virginia’s legal landscape. The commonwealth is one of 18 states, the first in the South, to permit recreational use.
But lawmakers and advocates alike caution that legalization doesn’t come without rules and limitations.
Some worry the nuances of this law may cause confusion, and they fear people of color will continue to bear the brunt of legal consequences.
“Any enforcement of marijuana is going to be a disproportionate enforcement on Black and brown people,” Higgs Wise said.
The law outlines new penalties for things like using marijuana in public and driving with an “open container” of weed.
“Right now, based on the definition of ‘open container,’ and [because] retail sales haven’t started, there technically is no legal closed container,” said Kelly Cournoyer, a defense lawyer in Virginia Beach who focuses on marijuana. The weed would have to be stored in its original packaging, but because there’s no regulated sales yet: that’s impossible.
During a traffic stop, Cournoyer said, “if there is marijuana in open view … that officer could presume that someone has consumed that marijuana and is under impairment.”
The state is planning a public awareness campaign about the new law, and advocacy groups have launched their own education efforts.
“After July 1, the reality for people in Virginia is going to look a lot like the reality for Black people in Virginia,” said Higgs Wise. “It’s always been really confusing when we’re breaking the law or not.”