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Youngkin’s new marijuana crimes face skeptical Democratic Senate

Marijuana plant
A marijuana plant at gLeaf's production facility on Richmond's Southside. (Photo: Alex Scribner/VPM News)

A Democrat in Virginia’s Senate says his caucus has the votes to reject a proposal from Gov. Glenn Youngkin to create two new crimes for marijuana possession when the legislature meets on Wednesday.

Youngkin proposed creating two new misdemeanor crimes for possessing between two ounces and a pound of marijuana. Under a loosened marijuana law passed last year, the current penalty in that range is a $25 civil fine.

Sen. Jeremy McPike (D-Prince William) said the Democrats, who narrowly control the Senate, discussed Youngkin’s proposal and didn’t like what they saw.

“There's not a member that's supportive of what's proposed in this governor’s substitute,” he said.

The idea of new criminal penalties has won some legislative support. Last year, the legislature’s research wing, the Joint Legislative Audit & Review Commission, noted Virginia’s law jumps from a civil fine to a felony for marijuana possession. It said other states had intermediate misdemeanors in that range and recommended Virginia add one.

Macaulay Porter, a spokesperson for Youngkin, says his recommendations were modeled after JLARC’s findings and pointed to comments the governor made to WTKR-TV earlier this month.

“To clarify where certain levels of marijuana possession would be penalized and at what level –  that was a very important amendment for law enforcement,” Youngkin said.

Sen. Adam Ebbin (D-Alexandria) included a new penalty as part of a broader proposal around cannabis retail sales earlier this year. That bill, which failed to clear the GOP-controlled House, would have added a new misdemeanor crime for possessing between four ounces and one pound of marijuana, with a maximum penalty for repeated offenses of up to six months in jail.

Youngkin’s proposal goes farther. It includes a maximum penalty of up to a year in prison and appeared to be a nonstarter for Democrats and cannabis advocacy groups.

“These two new misdemeanors would make the law more punitive today than it was back in 2020,” said JM Pedini, executive director of Virginia NORML.

In 2020, Democrats used their majority in the General Assembly to pass a law scaling down penalties for marijuana possession to a $25 civil fine. Before then, people caught with marijuana could face a jail sentence of up to 30 days and $500 fine for first offense, although those caught with larger quantities were often charged under stricter felony penalties dealing with intent to distribute.

The specter of new penalties has briefly united a fractious variety of marijuana and hemp advocacy groups. Jason Amatucci, executive director of the Virginia Hemp Association, called Youngkin’s changes a “nightmare,” while Chelsea Higgs Wise, executive director of Marijuna Justice, said the new crimes would “do nothing but target young Black and brown people in Virginia'' with cascading effects on evictions, student loan repayment and deportations.

The underlying bill, from Sen. Emmet Hanger (R-Augusta), originally had a narrow purpose: restricting the sale of cannabis products in shapes that might tempt kids, like animals or fruit. The bill gradually morphed to include a prohibition on certain hemp-derived products that can get consumers high. The products, including Delta-8 and Delta-10, have proliferated in gas stations and head shops across the commonwealth. The products are largely unregulated, and critics point to studies that have found some may contain toxic metals and varying levels of potency.

Youngkin’s changes would limit the sale of Delta-8 but include loopholes that would allow similar products, like Delta-10 or Delta-11, to flourish, according to Pedini. The amendment limits “total tetrahydrocannabinol concentration” to 0.3%, but the potency of that limit can vary significantly based on the form of the product and can be especially strong for edibles or liquids, they said.

“Outside any regulatory oversight, it's simply a buyer beware marketplace,” Pedini said.

Amatucci, meanwhile, objected to a proposed restriction from Youngkin barring CBD sales to people under 21, and said the safety concerns for products like Delta-8 are overblown.

“They make it look like there's a big public safety concern,” Amatucci said. “These products are very safe. Companies are wanting to do good. Yes, there are some issues out there that we need to take care of.  But we can take care of them with rules already on the books.”

Lawmakers will take up the cannabis bill as part of a broader reconvened session slated for Wednesday. They’ll take votes on the changes Youngkin made to 115 of pieces of legislation as well as 26 vetoes he signed.

Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.