Opinion: Law Legalizing Cannabis Should Take Effect Immediately Upon Voter Approval

By Toi Hutchinson

The writer is president and CEO of the Marijuana Policy Project, a former Illinois state senator and former president of the National Conference of State Legislatures. She is an original co-sponsor of Illinois’ Cannabis Regulation and Tax Act.

Marylanders have long supported moving forward with cannabis legalization, with more than two-thirds of residents in support, according to a 2021 Goucher poll. It is long past time for Maryland to join the 18 states and Washington, D.C., that have legalized cannabis for adults.

We applaud House Judiciary Committee Chair Luke Clippinger and House Speaker Adrienne Jones for their commitment to ensuring equitable legalization is achieved in Maryland. We especially appreciate their efforts to pass HB 837, which would serve as a companion to HB1, the referendum bill. Though HB837 is a good start, we urge leadership and rank and file members to consider the following recommendations to strengthen the equity provisions within the bills.

Since we learned of leadership’s will to legalize adult-use cannabis through referendum, we have advocated strongly that this measure must be self-executing, meaning it would legalize possession for adults 21 and older immediately upon voter approval.

Maryland should learn from New Jersey’s experience, as it is the only other state that has taken the constitutional amendment route to legalize cannabis. New Jersey’s voters approved legalization on the ballot in 2020, but unfortunately, the will of the people alone did not immediately make cannabis legal. The legislature still had to come back and implement a law months later.

Not only was this confusing for the average resident who saw a news cycle that celebrated a cannabis legalization victory when cannabis possession remained illegal, but it also led to real damage.

In the three months between Election Day, when two-thirds of voters approved legalization, and when Gov. Phil Murphy signed implementing legislation, more than 6,000 charges for minor cannabis possession were filed.

The result of the delay in New Jersey should be top of mind for lawmakers — Maryland must not repeat New Jersey’s mistake.

Under the current House proposals, adults would not be able to legally possess cannabis until July 2023. This delay would mean thousands of Marylanders — disproportionately Black Marylanders — would continue to be subjected to police interactions, citations and arrests for cannabis for eight months after voters adopt legalization. If voters opt to legalize cannabis in Maryland, cannabis needs to become legal without delay.

The House package should also allow adults to cultivate a small number of plants for their personal use, a provision that is included in most legalization laws. At its core, home cultivation is an issue of equity.

As proposed, HB837 not only prohibits home cultivation, but it goes even further by penalizing this practice with up to three years of imprisonment, a fine of up to $5,000, or both. It is contradictory and a recipe for injustice for Maryland to permit licensed businesses to grow cannabis but subject otherwise law-abiding people to life-altering criminal records and jail time for cultivating a few plants for their personal use.

Additionally, securely cultivating cannabis at home is the only way for some people who can benefit from cannabis medicinally to access it. For some, medical expenses and a reduced ability to work make the price of medical cannabis out of reach. Home cultivation should be included and effective immediately upon voter approval.

HB837 should also take into account other equity-minded recommendations, including the following:

• Cannabis odor should not be grounds for a search as similarly held by the Maryland Court of Special Appeals;
• The possession limit for an individual should be at least four ounces, mirroring the existing medical cannabis law;
• Any monetary civil penalty for smoking cannabis in public should be modest in nature so as to not disproportionately affect low-income people;
• Parole and probation should not be revoked for testing positive for cannabis; and
• Penalties for low-level sales should be reduced.

Finally, the House companion bill would leave it up to the legislature to establish a regulatory system for an adult-use market in 2023. The delay for the legislature to establish a regulatory system, let alone for that system to go into effect, is especially problematic given the need and will of the people to allow adults to access safe, regulated cannabis.

Further, leaving these important decisions up to a future legislature puts at risk the ability to ensure diversity and inclusion in the industry and the immediate reinvestment of revenues into communities that have long been disproportionately impacted by outright prohibition.

The sooner the legislature begins to work out the regulatory structure, the sooner the state can begin to displace the illicit market and begin to repair the decades of harm cannabis prohibition has caused.

HB1 and HB837 are a promising start, but with these equity-driven recommendations, the legislature can deliver immediate relief to cannabis consumers and patients across the state while being a leader on equitable cannabis legalization to the growing national movement.

The Marijuana Policy Project has played a leading role in most of the major cannabis policy reforms across the country since 2000, including more than a dozen medical cannabis laws and 10 of the 18 state laws legalizing cannabis for adult use.

As a national, nonprofit organization, we have expertise in the different approaches states have taken to legalize and regulate cannabis for adults.

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