Pot legalization passes statehouse, heads to Carney

The Delaware General Assembly has approved personal possession of marijuana, sending the bill to Gov. John Carney for his consideration. | PHOTO COURTESY OF ELSA OLOFSSON/UNSPLASH

DOVER – After a Thursday vote by the State Senate, Gov. John Carney will now face one of his most difficult decisions of his term: whether to legalize personal amounts of marijuana in Delaware.

In a historic party line vote just a week after the measure passed the House of Representatives, the State Senate voted 13-7, with Republican State Sen. Dave Lawson absent, to approve House Bill 371. Only Democratic Sen. Bruce Ennis (D-Smyrna) opposed the measure.

While advocates celebrated the historic vote, they may have more work to do. Carney is a rare Democratic governor who has steadfastly opposed legislation, citing his work to reduce tobacco use as lieutenant governor, despite a majority of Delaware voters supporting the measure.

Shortly after Thursday’s vote, Emily David, a spokesperson for the governor, told Delaware Business Times, “We’ll review the bill, but the Governor’s position hasn’t changed.”

House Bill 371, sponsored by longtime legalization proponent Rep. Ed Osienski (D-Newark), would remove a $100 fine for possession of 1 ounce or less of marijuana. Possession of more than an ounce would remain illegal, and possession of more than 175 grams, or roughly 6.25 ounces, would remain a felony.

Driving while impaired by marijuana would remain illegal and public use would remain prohibited. Employers can still set zero-tolerance policies for their workplaces.

Notably, HB371 also specifically does not allow the “gifting” of marijuana along with a commercial transaction of something else, a loophole that has allowed marijuana sales along with food or trinkets in Washington, D.C., and other legalized states that lacked a regulated sales framework. Marijuana could be gifted for free, but not as part of a combined sale.

A last ditch amendment by Sen. Bryant Richardson (R-Seaford) to delay implementing the bill until an “accurate test to gauge if someone is under the influence of marijuana” was developed was defeated in a party line vote.

The bill is part of a renewed attempt to push through marijuana legalization in Delaware while also creating a framework for recreational sales after the House shot down a comprehensive effort by two-votes in March. Seeking to push through at least half of the bill’s agenda, Osienski split the effort into two bills, House Bills 371 and 372, to try to gain approval during the current legislative session. An election in the fall may change the makeup of Legislative Hall.

HB 371, which essentially moves Delaware from a decriminalized to legalized model, only had to find bare majorities in both the House and Senate for passage. HB 372, which essentially sets up the state’s retail sale and taxation framework that largely rehashes his earlier failed bill, would still need to find a three-fifths majority since it creates new taxes though.

Osienski has said he believes fully legalizing marijuana in the state first may help some votes come around on the idea of creating a regulatory framework for retail sales. It could also provide some cover for lawmakers who don’t want to vote for legalization, but support taxation and sales if legalization is approved.

Despite Carney’s opposition to legislation, the recent opening of a legal recreational market in neighboring New Jersey may convince him to not stand in the way. It’s possible that he could let the bill become law via a “pocket veto,” where he would neither sign nor veto it, letting it become law after a period of time without taking a stance.

For now though, legislators and advocates were celebrating the historic approval vote.

“I want to thank the many advocates who have worked so hard on this issue for many years, far longer frankly than should have been necessary,” said Sen. Trey Paradee (D-Dover), the bill’s lead Senate sponsor, in a statement. “I also want to thank my colleagues in the Senate for acting quickly once a bill reached our chamber to end 50 years of prohibition and criminalization that historically has been unjustly and inequitably applied to people of color. My sincere hope is that this vote today also represents another major step toward replacing the illegal marijuana market with a thriving industry that will create good-paying jobs for the residents of our state.” 

For Osienski, who has made legalization a bit of a personal crusade over multiple legislative sessions, the vote was “the result of years of hard work, advocacy, dedication, and most of all, patience.”

“Thousands of residents know that the prohibition against marijuana is an outdated policy that needs to be changed. During this very involved process, we have heard from numerous members of the public – advocates, veterans, retired law enforcement officers, educators and even faith leaders – who have overwhelmingly voiced support for legalizing adult recreational marijuana,” he said in a statement. “I’m grateful to my colleagues on both sides of the Legislative Hall for passing this bill, and I look forward to continuing this process until Delaware is poised to establish a new, legal industry in our state.”