By: Teresa Sun

“Why am I still sitting here? Why can’t you just talk to the prosecutor and they will drop the charges?” After dozens of repeat phone calls to the public defender’s office, the client was still hung up on the question. He was charged with possession of a Schedule I controlled substance with intent to distribute, and the people around him have been telling him that marijuana is now legalized in Virginia.

 

The first state in the south and the 16th across the country, Virginia passed legislation legalizing recreational use of cannibis in April, 2021[1]. The legalization process, however, is not a clean-cut resolution. Although public support for legalizing recreational cannibis (especially marijuana) has grown exponentionally throughout the years[2], Virginia wasn’t quite ready to go all-in.

Possession for personal use is legalized, but not distribution. Lawmakers originally voted for the legalization to take place in 2024, giving time to launch a retail structure[3]. Concerned about people facing criminal charges during these additional three years, lawmakers eventually agreed on legalization in effect on July 1st, 2021[4]. Adults 21 or older may possess up to an ounce of marijuana and cultivate up to four marijuana plants per household, but selling or buying marijuana will still be illegal[5].

One might be asking, how are people supposed to get cannibis for recreational use if you cannot buy or sell it? Lawmakers’ answer was: just grow it. Adults 21 or older can gift another adult 21 or older no more than 1 oz of cannibis[6]. Can home-growers get in trouble for strictly personal recreational use cannibis? The answer is, unfortunately, yes. In general, when cultivated with adequate nutrients and light, one cannibis plant can yield up to 20 oz per plant for home growers[7]. Suppose someone just happens to be transporting the produce of one of their plants (20 oz, 1.25 pounds) from one of his properties to another for himself to enjoy. Possessing more than a pound is still a felony punishable by up to 10 years in jail and a fine of up to $250,000[8]—real trouble if he was stopped by law enforecement.

What about the people we already put in jail or prison for what is now legal? The legislation addresses these criminal records and says any prior misdemeanor arrest, charge or conviction of possession or distribution will be automatically sealed, and any prior felony arrest, charge or conviction can now be petitioned to be sealed[9].  Despite the practice of sealing criminal records from public view being common, state agencies have four whole years to complete this proceess and the deadline is July 1st, 2025[10]. Before then, people with prior records will keep suffering from the effect on their employment, housing, citizenship, and various other aspects of their personal life[11].

As if the timeline of sealing prior records were not enough, the General Assembly needs to revisit and pass legislation to reenact many sections of the Virginia Code (for example, Virginia Code § 18.248.1) for the prior records part to take effect. If the reenactment fails, many marijuana-related charges (for example, possession with intent to distribute per § 18.248.1)[12] will not be available for sealing. There is also the technical difference between sealed and expunged records[13], and some expungement provisions are not in effect until 2025[14].

Not all cannibis users can, or can afford growing cannibis plants. Before legalization of distribution in 2024 and additional expungement in 2025, prosecutors will be constantly faced with the moral question of which cannibis users are more culpaple than others. The law outlines a clear answer for the judges, but lawyers on both sides might not agree. While this legislation is well-intended in removing racial disparities in regards to marijuana, the actual implementation of the legalization process could still be confusing to a lot of people and leaves much to be desired.

 

[1] Karina Elwood, It’s Here: Virginia Prepare For Legalized Marijuana on Thursday, The Wathington Post (Jun. 30, 2021) https://www.washingtonpost.com/local/virginia-politics/virginia-marijuana-legal/2021/06/30/aa4c24f0-d5db-11eb-ae54-515e2f63d37d_story.html.

[2] Public support for legalizing marijuana went from 12% in 1969 to 66% today. Should Recreational Marijuana Be Legal?, ProCon.org (Nov. 2018), https://marijuana.procon.org.

[3] Karina Elwood, It’s Here: Virginia Prepare For Legalized Marijuana on Thursday, The Washington Post (Jun. 30, 2021) https://www.washingtonpost.com/local/virginia-politics/virginia-marijuana-legal/2021/06/30/aa4c24f0-d5db-11eb-ae54-515e2f63d37d_story.html.

[4] Id.

[5] Id.

[6] Gregory S. Schneider, What to Know About Marijuana Legalization in Virginia, The Washington Post (June 30, 2021) https://www.washingtonpost.com/dc-md-va/2021/04/23/virginia-marijuana-legalization/.

[7] How Much Weed Does One Plant Produce & Ways to Get Huge Harvests Each Time, Homegrown Cannibis Co. ((last accessed Jan. 18th, 2022), https://homegrowncannabisco.com/grow-your-own-with-kyle-kushman/the-cannabis-plant/marijuana-yield-per-plant/

[8] Gregory S. Schneider, What to Know About Marijuana Legalization in Virginia, The Washington Post (June 30, 2021) https://www.washingtonpost.com/dc-md-va/2021/04/23/virginia-marijuana-legalization/.

[9] Id.

[10] Id.

[11] See Mark Flatten, City Court: Misdemeanor Convictions Lead to Lifelong ‘Beyond Horrific’ Consequences, Goldwater Inst. (Apr 10, 2021), https://goldwaterinstitute.org/article/city-court-misdemeanor-consequences/.

[12] Va Code Ann. § 18.248.1 (2021).

[13] The key difference between expunging a person’s criminal record and sealing it is that a sealed record still “exists” in both a legal and physical sense, while expungement results in the deletion of any record that an arrest or criminal charge ever occurred. When a record is sealed but not expunged, it is still available through a court order. Expungement and Sealing of Criminal Records, Justia (last accessed Jan. 18th 2022), https://www.justia.com/criminal/expungement-record-sealing/#:~:text=The%20key%20difference%20between%20expunging,or%20criminal%20charge%20ever%20occurred.

[14] Expungement Reform: Giving People a Second Chance, Justice Forward (last accessed Jan. 18th 2022), https://justiceforwardva.com/expungement-reform.