Delaware Legalization Fails Again

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The Delaware State Capitol Building in Dover, Delaware. Photo: Shutterstock

Many had hoped that 2021 would be the year that Delaware would finally legalize marijuana.

But earlier this month, it became clear that once again lawmakers couldn’t come to an agreement despite Democrats controlling the General Assembly.

Why?

The bill won’t be voted on this year because of a dispute among Republicans, the bill’s authors and Black lawmakers over a proposed business licensing program, as well as lobbying efforts from police and Gov. John Carney, who opposes the bill, according to interviews by Delaware Online/The News Journal with more than 15 lawmakers, lobbying interests and those close to the measure.

It was a sudden turn.

Two weeks ago, just hours before the bill was scheduled for debate on the House floor, lawmakers announced they were postponing the vote.

The reasoning was vague.

Lawmakers said then that too many amendments had been proposed in the past week, and they needed more time to examine them.

But that’s where the momentum ended. The vote hasn’t been rescheduled, and the bill sponsor, Rep. Ed Osienski, D-Newark, now says it will have to wait until 2022 at the earliest.

The legislative session ends next week, meaning Delaware won’t join New York, New Jersey, Connecticut and Virginia in recently legalizing marijuana.

Maryland also failed this year to legalize weed, and Republicans who control the Pennsylvania General Assembly are also opposed.

Why the marijuana bill failed
The bill spiraled once lawmakers realized — months after introducing the bill — that a “social equity” fund attached to the proposal meant that 75% of lawmakers in both chambers would have to vote yes.

Originally, they thought they only needed 60%, which was already a hard number to reach.

In Delaware, any public money going to a business needs 75% of lawmakers’ approval, according to the state constitution.

The fund was supposed to pay for loans and grants to boost hopeful marijuana business owners who have been convicted or affected by marijuana criminalization in the past.

In its current form, the bill would give half of the first 30 business licenses to people who either have been convicted for marijuana (not including selling to a minor), are children of someone convicted, or live in an area with high rates of marijuana-related arrests and incarceration.

In Delaware, getting 75% of lawmakers to vote “yes” for something as controversial as legal marijuana is virtually impossible. So the sponsor’s solution was to save House Bill 150 by writing an amendment that would pull the fund out, replacing it with a directive that the state should find the money some other way.

That turned off several Black Caucus members who only want to legalize the drug if that fund is included.

“I was ready to vote yes on it until the amendment,” said Rep. Rae Moore, D-Middletown, one of nine Black lawmakers in the House. “A whole race of people have been criminalized for marijuana…You can’t pass this legislation and leave those people behind.”

Finance Secretary Rick Geisenberger alerted Osienski about the 75% threshold in March shortly after the bill was filed, but Osienski initially did not believe Geisenberger was correct, Osienski said.

Legislative attorneys didn’t confirm Geisenberger was right until early June, days before the bill was scheduled for a floor vote, according to Osienski. It derailed Democrats’ promise to move the bill this year, catching supporters off guard.

Some Black lawmakers felt slighted at the last minute, further bruising already delicate negotiations with the Black Caucus. At least one member, Rep. Nnamdi Chukwuocha, D-Wilmington, pulled his name off the bill.

Osienski, who needs those Black lawmakers’ votes, said the financial assistance is “key” to legalizing marijuana. He said he plans to find a new avenue over the next six months, possibly through the Division of Small Business which handles existing grant and loan programs.

“I am sorry that it didn’t happen this year, but I think it’s going to be a better bill,” Osienski said.

Lawmakers are in session until June 30 and then go on break until January.

The discord in the General Assembly exasperated longtime supporters of the policy, who have watched lawmakers try and fail to legalize cannabis for years — especially as nearby states such as New Jersey have green-lighted the plant.

“All the other harms of prohibition, including the violence pertaining to the illicit market, this will all continue,” said Zoe Patchell, lobbyist with the Delaware Cannabis Advocacy Network.

Lawmakers haven’t only taken issue with the loan program. While Democrats hold 60% of both chambers in 62-member Statehouse, some Democratic lawmakers don’t support legal weed at all — enough, in fact, to keep the bill from passing.

Non-supporting Democrats have been tight-lipped about their reasons, but fellow lawmakers speculate it’s a result of personal moral objections, prolonged stigma, sympathy with law enforcement and pressure from the Carney administration.

As a result, Osienski has had to resort to scraping a few votes from the other side of the aisle while still appeasing to progressives, forcing him to engage in what some in Legislative Hall have described as a head-spinning game of weed-sanctioning “whack-a-mole.”

Even if the bill only needs 60% of votes without the equity fund, Osienski estimated he is still one or two votes short of passage.

Osienski said he has to work out other issues in the 49-page bill in order to appease some Republicans who may vote for the bill, including some who have proposed amendments related to product safety, workplace rules and who would benefit from the social equity program.

Rep. Jeffrey Spiegelman, R-Clayton, for example, said he would “probably” vote for it if enough changes were made. The Republican has proposed several amendments to the bill and said he plans on introducing more.

In a June 7 Facebook post about the bill, Spiegelman criticized the equity program.

“No business plan is required,” Spiegelman wrote. “But if you have a criminal record for being a drug dealer, we will move you right to the front of the line to get a license over someone with a business plan and no prior convictions.”

But other Republicans such as Rep. Ruth Briggs-King, R-Georgetown, plan to vote “no,” despite the proposed amendments to the bill. She criticized details like the equity license program “ploys” to “pacify” the lawmakers who have historically opposed it.

It’s unclear exactly how many Black lawmakers’ votes are in jeopardy without the loan program. Some Black lawmakers would still vote for the bill without it, while some may not vote for any form of marijuana legalization.

A 2020 study from the American Civil Liberties Union found that Black people were found to be 4.2 times more likely than white people to be arrested for possession in Delaware despite having similar marijuana usage rates.

That rate is above the national average disparity, and the state’s disparity increased between 2010 and 2018 despite the state decriminalizing the drug in 2015, according to the study.

The fund was expected to specifically help communities of color, though Osienski insists that white residents could also benefit.

But the Black Caucus saw the fund as an essential tool in righting the wrongs that Black people and people of color suffered thanks to marijuana prohibition. It was written into the bill as a result of talks with those Black lawmakers, according to Black Caucus Chair Rep. Kendra Johnson, D-Bear.

“You can certainly expect to see Black people who would benefit from it,” Johnson said. “If we do this right, then maybe legalized marijuana in the state of Delaware won’t be overly white. Maybe it will truly be a melting pot.”

Others are more critical. Laura Sharer, a lobbyist with the Delaware branch of the National Organization for the Reform of Marijuana Laws, said that the fact that the bill does not explicitly state that the equity program is to help people of color, along with proposed amendments to further chip away at that program, gives the impression that the bill was “whitewashed.”

“Quite clearly, it does not say that we are giving priority to our Black and brown community,” Sharer said.

While lawmakers were wrangling over amendments, the governor’s staff were working to convince some lawmakers to reject the bill.

It’s not clear what exactly was said during those conversations, since lawmakers who spoke to Delaware Online/The News Journal were resistant to sharing details publicly. Emails to and from lawmakers and their staff members are also not publicly available in Delaware.

It’s no surprise that Carney, a Democrat, lobbied against the bill since he has consistently opposed legalizing the plant for his residents despite widespread support from his party and a 2018 poll from the University of Delaware showing that the majority of his constituents support it.

During a COVID-19 press briefing earlier this month, Carney said the bill is a “bad idea” and pointed to how he has previously worked on campaigns to get people to stop smoking tobacco.

He would not say whether he would veto it should it pass.

When asked about Carney’s lobbying efforts with lawmakers, his spokesman Jonathan Starkey said Carney has “technical concerns with the legislation around finances and tax collection, public safety and public health.”

“We have raised those issues with legislators,” Starkey said.

Regulating legal sales would cost the state more than $3 million a year, according to an official financial analysis of the bill. Officials did not do an analysis on how much revenue it would bring by taxing sales at 15%.

The Delaware State Troopers Association also lobbied against the bill by contacting “several” lawmakers from both parties to try to convince them to vote no, according to its executive director Thomas Brackin. He would not say which lawmakers they contacted and said he wasn’t sure how many were persuaded.

Police have an especially powerful hold on the General Assembly where several top-ranking Republicans and Democrats, including in the Black Caucus, are either retired officers or have some other sort of personal connection with police.

Police oppose the bill because they can use marijuana as a way to catch criminals who are dealing harder drugs such as heroin because they sometimes smoke marijuana, Brackin said. He could not provide exactly how often police are able to do this.

“Law enforcement is often able to precipitate investigations based on the presence, the obvious presence of marijuana in someone’s possession,” he said. “It’s a regular course of business that at times marijuana has led to more serious charges.”

The police organization also sent a letter to House members that criticized the social equity program as “seemingly rewarding those for their past bad behavior.”

“We just don’t understand why convicted felons would have the opportunity, would have an added benefit to be able to get in for this business,” Brackin said.

“Because they’re convicted of a marijuana-related crime ignores the fact that that’s probably the crime they took the plea to, that the underlying offense was likely something more serious.”