Marijuana Reforms in Virginia: High Times or Up in Smoke?

Jan 5, 2015

Legal Marijuana in Colorado
Credit Photo by Brett Levin, Creative Commons

Marijuana is now legal in four states, the District of Colombia and South Portland, Maine.  It’s been decriminalized in 17 states – among them our neighbors, North Carolina and Maryland. 

So where does that leave Virginia?  Is anyone calling for legal reforms here? 

Jordan McNeish was a bright kid who finished high school early and began taking courses at Piedmont Virginia Community College.  He’d been arrested once for possession of marijuana, paid a fine but spent no time in jail.  Then, in 2009, he was charged with a second offense.

“In Virginia, if you have over half an ounce of marijuana, it’s assumed that you were intending to distribute it.”

And for that, he could have spent five and a half years in prison.  In the end, he served only six months – the rest of the sentence suspended for good behavior, but McNeish says his life was in limbo for a long time.

“Every couple of months they’d say, ‘Oh, it’s going to be another couple months for your trial.  Oh, it’s going to be another couple of months for your sentencing,’ so it ended up taking a year and a quarter out of my life that I wasn’t really confident enough in my ability to stay out of jail to sign up for classes or anything.”

While few judges impose jail time for a first offense, people caught with pot routinely face another serious problem.  If convicted, they will lose their driver’s license, even if they never got behind the wheel stoned.

“Clearly, this revocation of the privilege to drive is an immense hardship on any citizen.”

Richmond Lawyer Kenneth Chrisman says courts can restore driving privileges for people to attend school or work, but for those whose jobs depend on a commercial driver’s license, this penalty will likely mean an end to employment.

Jordan McNeish now works in construction -- rehabbing homes, and spends much of his free time trying to get Virginia’s marijuana laws changed. This year, he has an ally in the state capital – Senator Adam Ebbin of Alexandria.

“We’re spending $67 million a year to disrupt the lives of tens of thousands of Virginians, and it’s not making the Commonwealth any safer.”

Ebbin’s not ready to call for legalization, but he’s drafted Senate Bill 686, which would impose a hundred dollar fine for possession of small amounts of marijuana.  He thinks the drug is relatively safe for adult use.

“It’s widely reported and agreed that tobacco kills about 440,000 people annually, and alcohol about 85,000, while the number of marijuana deaths  -- if any – is too small to be detected in studies.”

UVA Law Professor Richard Bonnie says there are many things we still don’t know about marijuana, and the government should think long and hard before making it legal.  He was appointed by the president, 40 years ago, to serve on a committee that recommended decriminalization of marijuana nationwide.  They stopped short of calling for legalization, based on a big public health problem with a drug that was already legal.

“With tobacco at that time, it was wide open.  There were hardly any restrictions on youthful use, and even those that existed were totally unenforced.  You had massive advertising of tobacco, and a lot has changed.”

He says we should learn from those changes, as we move forward to liberalize marijuana laws. So how likely is Virginia to make a change? In a Republican-dominated statehouse, pot protagonist Jordan McNeish thinks it’ll be a while, but he’s encouraged by one politician – respected by Republicans and Democrats alike.  His name was Thomas Jefferson.

“Jefferson grew cannabis, so I think he would be a civil libertarian as far as this goes.”

Of course Jefferson had no scientific data on what smoking pot might do to the human brain or body, and highway safety was not yet a concern.   In our next report, we’ll explore the possible risks of legalizing marijuana. 

Part Two: Prospects for Legalizing Pot in Virginia

While four states have legalized marijuana and 17 have eliminated criminal penalties for possession of small amounts, arrests in Virginia are rising.

For nearly 50 years, marijuana has been wafting through popular culture, and in the 70s there was serious talk of legalizing it, but as the nation moved to the political right, that idea went up in smoke.  Today, police in Virginia arrest 20,000-25,000 people a year for possession of marijuana, and this is one of 16 states where the numbers have been rising.  Statewide, pot-related arrests were up more than 5% from 2012 to 2013 – the fourth consecutive year of increase.

This trend defies a perception that possession of pot is not a serious offense.  That’s according to John Gettman, former director of the National Organization for the Reform of Marijuana Laws and a professor of criminal justice at Shenandoah University. 

“Our judicial council did a survey of legislators, judges, prosecutors, defense attorneys and ranked the seriousness of all these different crimes in Virginia, and marijuana is in like the bottom 15 of all crimes in Virginia.  It’s thought to be about as serious as hunting without a license of trespassing on someone’s property.”

But some experts argue that marijuana could pose a risk to public health.  At the National Institute on Drug Abuse, psychologist Susan Weiss cites a 25-year study of a thousand people, beginning at age 13.

“Marijuana use is associated with a decrease in IQ and those people who used it the most showed the biggest decline.  People who used it a lot when they were young and then stopped in the last year or two before the last assessment – their IQ did not return to normal, and people who started when they were adults didn't show the same decline in IQ over this period.”

How serious was the impact on IQ?  Some subjects dropped as much as 8 points, and Gettman says the drug may be especially hazardous for certain groups of people.

“Marijuana is not something that’s recommended for people with certain psychiatric problems.  There are concerns about any kind of drug use during pregnancy.” 

Then there are concerns about highway safety.  Since it legalized recreational marijuana, Colorado has seen no increase in fatal traffic accidents, and some studies show people who have smoked pot tend to drive more slowly, but Weiss is worried:

“We do know that marijuana affects driving ability, and we do know that it’s associated with an increased risk of being in a car accident -- probably not as high as alcohol but the two combined are actually worse than either one alone.”

Then there’s the question of how dangerous the drug itself might be. Folks who favor legalizing pot point out that no one has ever died from an overdose, but at the University of California at San Francisco’s School of Medicine, professor Stanton Glantz says smoking anything is risky.

“In fact, marijuana smoke and tobacco smoke aren’t that different from wood smoke or even diesel exhaust.  They are all the result of incomplete combustion of organic material.”

Studies have not linked marijuana to lung cancer, but Glantz says even occasional smokers increase their risk of heart disease.  There’s a lot we still don’t know about marijuana and health – and since the stuff is illegal in most states, doing medical research is difficult, but everyone seems to agree that young people should steer clear of pot.  So does legalizing or decriminalizing mean more kids will start smoking? We’ll answer that question in our next report.

Credit Drugabuse.gov

Part Three: Are The Kids Alright?

As Virginia’s legislature considers a bill to decriminalize marijuana, some critics worry that doing so will send the wrong message to kids who may already view the drug as harmless, and the prospect of legalization sends some parents into a panic. 

Maryland, North Carolina and the District of Columbia have ditched criminal penalties for possession and cultivation of small amounts of marijuana for personal use, and State Senator Adam Ebbin thinks it’s time for Virginia to do likewise. 

“Marijuana is not the same kind of threat as other drugs are.  Roughly 25 million Americans smoked marijuana in the last year, and our public policy needs to reflect that reality rather than deny it.”

Instead, more than 20,000 people a year are being arrested in the Commonwealth for possession.  That’s okay with Dana Schrad, executive director of the Virginia Association of Chiefs of Police.  She’s not sure decriminalization is a good idea, worries that it could lead more teenagers down the path to dangerous drugs, and thinks pot is being legalized for the wrong reasons.

“In some cases it’s looked at as an economic development opportunity – an opportunity to legalize something that farmers can grow and businesses can sell, but there’s always unintended consequences in everything you do.  Is marijuana a gateway drug to harder drug use?  Very possibly so.”

‘Or not,’ says Susan Weiss, a psychologist with the National Institute on Drug Abuse.

“People tend to use marijuana before they use other illicit drugs, but that’s probably because it’s much more available, and it’s the drug that people are more likely to come in contact with, and the same argument can certainly be made that nicotine and alcohol would be gateway drugs to other drug use.”

And Jon Gettman, a professor of criminal justice at Shenandoah University and a long-time advocate for liberalizing marijuana laws, contends making weed illegal puts kids at increased risk for trying more dangerous stuff.

“When teenagers go to the illegal market to buy marijuana, the people selling them marijuana also will expose them to things like cocaine, and Oxycontin and methamphetamines and so forth.” 

But does legalizing or decriminalizing marijuana make it more available to kids?  That was a concern for the National Institute on Drug Abuse which routinely surveys teens. Staffer Susan Weiss cites the latest poll in concluding liberalized laws have not increased access.

“It doesn’t break out the information by state, but overall we did not see an increase in marijuana use this year, which was heartening to us.  We were very concerned about it, because not only have a few states legalized it, but on top of that all the discussion about legalizing it or allowing it for medical use we know is changing the perception of kids.  We know that they’re seeing less and less risk associated with use, and usually when  risk goes down, use goes up, but we haven’t seen that this year.”

Even before the drug was legalized in Colorado and Washington state, about half of students surveyed nationwide said marijuana was easy to get, and proponents of legalization argue it would be better to sell pot from carefully regulated shops, to assure that buyers are 21.  Again, Jon Gettman.

“Making marijuana illegal just doesn’t work as far as controlling the market, keeping it away from kids and reducing social costs.”

On the flip side, legal bans on pot have created a hardship for some teens, children and adults who have medical conditions that could be treated with drugs derived from the cannabis plant.  In our next report, we’ll look at the prospects for legalization of medical marijuana. 

Credit Photo: David Trawin, creativecommons.org/licenses/by-sa/2.0/

Part Four: Money & Medicine

A new poll commissioned by the Marijuana Policy Project shows 60% of Virginians think it’s time to decriminalize marijuana, and three out of four voters think seriously ill people should have legal access to medical marijuana. 

When I met 15-year-old Jennifer Collins, she was living in Colorado, where her mother could get medication for her – an oil that controlled her seizures without serious side effects. Because that drug was made from a derivative of the marijuana plant, Jennifer could not have it at home in Northern Virginia, where her father, her sister and her friends still lived.  So she wrote a letter to lawmakers in Richmond:

“I am currently living in an apartment with my Mom, me and my dog.  My family is split up, and it’s killing me to see my mom this way.  She has never looked so sad and depressed in her life.  If there is research that shows the medical marijuana works, then you would have to be crazy not to want to give it a try. Will you make it better for everyone?  Can you allow me to see my dad every day?  Please consider it.  Thank you.”

And her mother Beth spent months lobbying the legislature.

“It’s not just important that we want to get home, because we do, but there are so many children in Virginia whose life literally depends on access to this medicine, and lots of people can’t travel to Colorado, and they shouldn’t have to.”

Ironically, Virginia was the first state in the nation to approve medical marijuana back in 1979, but lawyer Kenneth Chrisman says the wording of the law made it useless.

“The law requires a valid prescription from a health provider.  Because the federal government views marijuana as a schedule one substance with no medical use whatsoever, it cannot be validly prescribed.”

So sick people who try medical marijuana for a variety of ailments can be subject to criminal penalties here.  That’s why Delegate David Albo, a Republican from Fairfax County, has introduced House Bill 1445.  It would change the word “prescribe” to “recommend,” making it legal for patients to use pot if their doctors suggest it for glaucoma, cancer and frequent epileptic seizures.

“One of my constituents’ sons is in intensive care on life support three times a year, and they have found that if they get this oil it reduces the number of seizures dramatically.”

His bill and a similar measure proposed by Senator David Marsden of Fairfax do not include marijuana for pain control, though studies show it can be effective in treating chronic pain.  Critics say some companies that make prescription painkillers have given generously to groups and politicians who oppose liberalizing marijuana laws.  The makers of oxycontin and some other opiod drugs have contributed more than a million bucks to lawmakers in Virginia over the last decade. Albo has collected from some of them but scoffs at any connection, saying he left pain out of his measure to prevent easy access to pot.

“That sets up what I consider to be this kind of joke like you have out in California, because everybody has a marijuana card,  because everybody says, ‘Oh, my back hurts.’”

Whatever the reason, Albo says there will be considerable opposition to his bill, and even if it’s passed, patients might have to risk arrest for transporting a federally controlled substance manufactured in Colorado across state lines. To fix that problem, the federal government must take pot off the list of schedule one drugs.  The White House could do that through a cumbersome process, but the president says he’d  prefer Congress act on the issue. At the University of Virginia’s Law School, Professor Richard Bonnie doubts that will happen.

“There has been a massive default of responsibility on the part of the Congress.”

So proponents of liberalizing marijuana laws keep working at the state level, and here in Virginia there are a few trends in their favor.  We’ll look at those in our next report. 

 

Part Five: Sales Potential

Virginia is rarely a trend-setter when it comes to legislation.  Attorney General Mark Herring, who was out front on the issue of gay marriage, says he’s taking a wait-and-see approach to reforming marijuana laws, but several factors could accelerate change.

This month, the Virginia legislature will consider a bill to decriminalize marijuana, but before it can be debated it must clear a committee co-chaired by long-time Williamsburg Senator Tommy Norment.

“This is not Colorado or the state of Washington. I think the marijuana plant will wilt very quickly on the vine before the House and Senate Courts Committee.”

But there are some factors that could change minds and votes in Virginia. Experts estimate, for example, that it costs the state more than $60 million a year to arrest, try and punish people for marijuana-related offenses.  Richmond lawyer Bill Linka considers that a waste of tax dollars.

"It costs about $80-$100 a day to lock somebody up, to put somebody in jail for 10, 20 or 30 days– I just don’t know how it makes any kind of fiscal sense."

And, he says, marijuana cases are clogging up the courts, using too many resources in relation to the harm of the crime.

"You have to have the police officer there.  It has to be tested down at the state laboratory under some circumstances.  You have to have all the courthouse personnel there – the security, the judges, and even if they spend five minutes on a case, that’s a fairly large chunk of taxpayer money to give some kid a hard time over $5 worth of marijuana."

There is also a growing concern about the way marijuana laws are enforced.  Jon Gettman, a professor of criminal justice at Shenandoah University, says African-Americans are far more likely to be arrested.

"The arrest rate for blacks is 3-4 times higher than it is for whites in every jurisdiction in the country.  This is not a city thing or a Southern thing or an East Coast thing.  You name a place and that disparity will exist in the arrest rates."

Others who favor decriminalizing or even legalizing pot point to a huge windfall in Colorado, which has legalized recreational and medical marijuana.  In the first ten months of last year, it took-in $50 million in tax revenues.

Virginia-based tobacco firms may also be pondering the sales potential of pot. 

"The tobacco companies have, for decades, been thinking about getting into the marijuana business."

Stanton Glantz is a professor at the University of California’s School of Medicine in San Francisco.

"Phillip Morris even went to so far as to start studying marijuana smoke."

That was back in the 70’s, when President Richard Nixon was strongly opposed to reducing criminal penalties for possession of pot, so Glantz says Phillip Morris, British-American Tobacco and RJ Reynolds never went public with their interest. 

Even now, they deny that they’re looking at pot as the next addition to their portfolios, but an internal memo from the 70’s makes the case.  “We’re in the business of relaxing people who are tense and providing a pick up for people who are bored or depressed,” it says. “The human needs that our product fills will not go away.  The only real threat to our business is that society will find other means of satisfying these needs.”

One other factor that could hold sway as Virginia considers legalizing or decriminalizing pot.  Those approaches are increasingly accepted by mainstream experts like Richard Bonnie, a professor of law at UVA who sat on a federal commission that recommended decriminalization in 1972.

"I just am flabbergasted that it has taken 40 years  for people to realize that punishing people in jail and giving them criminal records for using marijuana just makes no sense."

And a new poll shows a clear majority of Virginians – 60% -- support decriminalizing pot, while 75% favor legalizing medical marijuana.