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After Virginia legalized pot, majority of defendants are still Black.

( Picture taken by G Taylor of )

October 16, 2022 at 7:00 a.m. EDT

A year after Virginia lawmakers legalized recreational marijuana with hopes of lessening racial disparities in enforcement, police in the state are still more likely to arrest Black people than White people for marijuana-related offenses, a Washington Post analysis found.

While marijuana arrests overall dropped in the year since Virginia became the first state in the South to legalize, Black adults accounted for nearly 60 percent of marijuana-related cases before the state’s general district and circuit courts, an analysis of marijuana-related code citations in the state’s court system concluded, despite Black people accounting for about 20 percent of the state population.

The findings echo results seen in other states and the District of Columbia, as state lawmakers across the country increasingly describe legalization as a vehicle for social equity — an intent of Democratic lawmakers in Virginia who hoped to counter the toll the nation’s war on drugs had on Black communities. Lawmakers in Maryland voiced the same hopes for impact when they decided to ask voters if they want to legalize recreational use on the ballot next month. Yet gaps between intent and implementation persist, with White entrepreneurs so far comprising most of the legal market as Black people continue to comprise a bulk of marijuana-related arrests nationwide.

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While racial equity often drives calls for reform — President Biden last week announced that he would grant mass pardons for anyone convicted of federal simple possession charges as a first step to “right these wrongs” — cannabis and criminal justice experts said disparities will remain stubborn against a backdrop of broader, unchanged trends in policing.

“The policing practices haven’t changed,” said Jon Gettman, associate Professor of Criminology and Criminal Justice at Shenandoah University. “The laws they have to enforce have changed, but the practices haven’t.”

Those practices often relate to the structural organization of police operations and where officers are deployed, Gettman said, and areas where police are more concentrated, because of increased crime or more need for those services, often tend to have more minorities. And law enforcement officials say the shifting laws on marijuana are complex and have been, at times, difficult to manage.

The law in Virginia allowed individuals 21 or older to possess up to one ounce of marijuana in public and cultivate up to four pot plants at home. But sales remained illegal under the Virginia law, to give the legislature time to establish a framework for the new market. As a result, distribution charges make up a bulk of marijuana-related arrests.

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Possession of more than one ounce was subject to a $25 civil penalty during the first year of legalization (Gov. Glenn Youngkin (R) proposed and signed a law that went into effect July 1 this year that created misdemeanor charges for possession over four ounces). Possession of more than one pound is a felony, as is selling more than one ounce of marijuana.

The Post’s analysis was drawn from a list of more than 1,700 marijuana-related code citations between July 1, 2021 and the end of June this year, provided by the Supreme Court of Virginia’s Office of the Executive Secretary in response to a Virginia Freedom of Information Act request. The data does not include data from the Alexandria Circuit Court or from the state’s juvenile court, and race data was only labeled as Black, White, Asian and unknown.

The list is made up of cases in which a code relating to marijuana use, possession or sale was recorded. The majority of the cases included code citations for sales or possession by those under age 21. The data does not reflect the nature of these arrests or any other charges in an individual case.

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Some other marijuana-related charges in police data, such possession by those who are incarcerated, were not included in the analysis.

While overall marijuana-related citations dropped by about 90 percent in Virginia from 2019, those bearing the brunt of enforcement still face compounding repercussions, said Ashley Shapiro, a public defender in Richmond and criminal justice reform advocate with Justice Forward Virginia.

“Anytime there’s a criminal consequence it has foreseen and unforeseen consequences with getting a job, with applying for housing,” Shapiro said. “So there are a lot of collateral consequences, even in this time when it’s technically legalized.”

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And in a state like Virginia, enforcement could greatly depend on location. Chesterfield County General District Court had the second highest number of arrests in state behind Virginia Beach General District Court, though it is the fifth most populous. In Chesterfield, Black defendants made up 71 percent of 110 pot-related cases in the year after legalization passed, according to The Post’s analysis.

In Fairfax County, the state’s most populous county, Black defendants made up just over 30 percent of 108 pot-related cases in the year after legalization passed.

“This is more proof that there should be no penalty because anyone receiving the penalties, or the majority of the people receiving the penalties, at this point are going to be Black and Brown folks that are already marginalized,” said Chelsea Higgs Wise, Executive Director of Marijuana Justice, a Virginia legalization advocacy group.

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State Sen. Adam P. Ebbin (D-Alexandria), a main sponsor of legalization, said that until that regulatory framework is established and there is a legal route to sales in Virginia, disparate enforcement of the laws that exist will continue to be a problem.

“It’s well past time that we stand up a legal marketplace that allows adults to legally purchase and until we do that, we’ll still continue to see trends in disparate enforcement of cannabis crimes,” Ebbin said.

But even states with legal markets, a report from 2016 found, have not been successful in fully stamping out disproportionate enforcement of marijuana laws. John Hudak, a Brookings Institution senior fellow in Governance Studies, emphasized that while the disproportionate enforcement is not falling off, the number of arrests are plummeting, so there are fewer people of color being arrested for cannabis crimes post legalization than pre legalization.

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“People need to think of dealing with issues of race in our country as a big, comprehensive, institutional effort, that one policy reform is not going to fix,” Hudak said. “You don’t undo 400 years of racial injustice by the passage of one law in the state.”

The commonwealth decriminalized marijuana possession in 2020, leading to the first major dip in enforcement. In 2019, the state reported more than 26,000 marijuana-related adult arrests. That figure dropped to more than 13,000 in 2020.

And for all of 2021 — which included the six months after legalization went into effect on July 1 — there were just over 2,000 marijuana-related arrests.

JM Pedini, executive director of the Virginia National Organization for the Reform of Marijuana Laws, said that the lower figures were a victory for Virginia, noting a recent study that while legalization does not eliminate disparities — states that have not legalized showed an increase in the arrest disparities between Black and White people over time.

“What sensible cannabis policy can do is remove certain tools used for disproportionate policing from the toolbox,” Pedini said. “Notably, decriminalization, the elimination of using the odor of marijuana for search or seizure, and then legalization.”

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Police in Virginia said they are adjusting to the new laws, but the complexity of what’s legal and what’s not can at times be difficult to manage, especially changes around not relying on the odor of cannabis as cause.

“The big thing is if you had a traffic stop and you smelled, basically the officer would be in control on whether this person can leave freely to go or not,” said Jeff Guess with the Henrico County Police Department. But now, “We have to show something more, not just the smell.”

Guess, the Commanding Officer for the Organized Crime Section, said the agency is still pursuing marijuana offenses, but possession violations are not always a priority.

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“If it’s a simple civil penalty, when you are an administrator and you have to answer for more severe drugs that are out there that people are overdosing and dying off, you kind of gotta weigh your options,” Guess said.

Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said that managing traffic stops — especially for impaired driving — has been difficult across the state because there are no set standards to measure someone’s impairment from marijuana. As for the disparate enforcement, Schrad said the issue is more nuanced than people tend to think, like considering where calls for service are generated, or where there are a larger number of crashes.

“It’s just something where it’s still a violation of federal law and, theoretically, we should be able to rely on that,” Schrad said. “But we can’t because it’s a different legal framework here in Virginia.”

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