Delaware Senate Approves Marijuana Legalization Bill, Sending It To The Governor

The Delaware Senate on Thursday approved a House-passed bill to legalize marijuana possession, sending it to the governor’s desk.

Meanwhile, a separate, complementary proposal to set up commercial regulations for an adult-use market has also been advancing and is expected to move to the House floor before potentially being transmitted to the Senate.

Rep. Ed Osienski (D) is sponsoring both measures as part of a two-track approach to enacting the reform. He initially tried to pass a bill that included both components, but it failed to get a three-fifths supermajority and was defeated on the House floor in March.

The sponsor then devised a different plan, breaking up the measure so that he would have one bill to simply legalize possession for those 21 and older that only requires a simple majority to pass and another to create regulations for the market that still needs three-fifths of members to be enacted.

So far, things are progressing as planned. The Senate gave final approval to the possession legalization bill in a 13-7 vote, one day after the measure advanced through the Judiciary Committee. And the separate regulations measure is now teed up for House floor consideration after clearing two panels in that chamber.

Ahead of Thursday’s vote on legalization, senators also approved a resolution condemning a traffic stop and drug search that Georgia police conducted on a bus transporting the Delaware State University women’s lacrosse team last month. The measure passed 14-4, with three members not voting.

Meanwhile, when it comes to cannabis, a potential complication still lies ahead for the legislature-passed reform bill: Gov. John Carney (D), one of the rare Democratic governors who remains opposed to legalization.

“Like many Delawareans I’ve been perplexed by the General Assembly’s inability to pass legislation to legalize recreational marijuana,” Sen. Trey Paradee (D), the Senate sponsor of the bill, said on the floor. “But here we are today with an opportunity to pass legislation that is supported by a majority of Delawareans.”

A GOP senator filed an amendment to the legislation that would have delayed the effective date of legalization until technology is developed for police to detect active impairment from THC, but it was rejected in a 6-14 vote.

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“Following years of advocacy, Delaware is closer than ever to finally ending the failed policy of prohibition, a move that has widespread support among Delawareans,” Olivia Naugle, a senior policy analyst with the Marijuana Policy Project, told Marijuana Moment. “With neighboring states moving forward with legalization, now is the time to get this legislation over the finish line”

Lead bill sponsor Osienski, for his part, has reasoned that more lawmakers might be inclined to support the regulatory bill and reach the higher vote threshold if the legislature chooses to legalize for non-commercial purposes.

Here’s what Delaware’s HB 371 would do: 

The bill would amend state statute by eliminating penalties associated with the possession of up to one ounce of marijuana by adults 21 and older.

It would further add a section stipulating that adults 21 and older could share up to an ounce of cannabis “without remuneration.”

That section clarifies that marijuana could not be “gifted” as part of a contemporaneous “reciprocal transition” or if the gift is contingent on a separate transaction for non-cannabis products or services.

Here are the main provisions of the complementary HB 372: 

A marijuana commissioner would be appointed under the state Division of Alcohol and Tobacco Enforcement. The official would be tasked with regulating the industry and overseeing licensing of retailers, cultivators, manufacturers and laboratories.

Licenses would be granted through a scored, competitive process, with advantages given to those who pay workers a living wage, provide health insurance or meet certain other benchmarks.

After 19 months of the bill’s enactment, regulators would need to approve 30 retailer licenses, half of which would go to social equity applicants. Social equity applicants would be defined as entities majority-owned by people with past cannabis convictions or who live in an area disproportionately impacted by the drug war.

Those applicants would also be allotted one-third of the planned 60 cultivation licenses, one-third of manufacturing licenses and two of five licenses for testing laboratories. They would also qualify for reduced application and licensing fees as well as technical assistance from the state.

Retail marijuana sales would be subject to a 15 percent tax. No tax would be levied on medical cannabis sales.

Seven percent of the tax revenue would be used to support a new Justice Reinvestment Fund that would provide grants, services and other initiatives that focus on issues such as jail diversion, workforce development and technical assistance for people in communities that are economically disadvantaged and disproportionately impacted by the drug war. The money would also be used to help facilitate expungements.

Home cultivation for personal use would continue to be prohibited.

The legislation would allow individual municipalities to establish their own regulations for marijuana business operating times and locations, and they would also be allowed to ban cannabis companies altogether from their jurisdictions.

The bill provides explicit legal protections for state employees who work with the state-legal market. And it would also allow marijuana businesses to claim tax deductions at the state level—something they’re prohibited from doing at the federal level under a tax code known as 280E.

The tax-and-regulate bill is materially the same as the measure defeated in the state House in March.

Vermont lawmakers followed a similar approach to what Osienski is now pursuing by first passing a noncommercial legalization bill in 2018 and then following that up with separate legislation to tax and regulate sales in 2020.

Notably, Delaware House Speaker Pete Schwartzkopf (D), who was the sole Democrat in the House who voted against the earlier legalization bill, signaled that he might be inclined to support a bill providing a regulatory infrastructure for marijuana commerce if the chamber votes to legalize possession and sharing. That said, he still voted against HB 371.

An even earlier legalization bill from Osienski cleared committee last year. However, disagreements over social equity provisions stalled that version, keeping it from the floor. At the time, Osienski pledged to bring a revised bill for the 2022 session that could earn broad enough support to pass.

When the sponsor’s earlier bill was being considered last year, he said he was caught off guard when he was informed that the inclusion of a social equity fund meant the bill would require 75 percent of legislators in the chamber to approve it.

The lawmaker tried to address the problem through an amendment, but some members of the Black Caucus opposed the changes, and the measure failed.

Osienski has worked with the Black Caucus in the ensuing months to build support and move toward more passable legislation. And a clear sign of the progress is that Reps. Rae Moore (D) and Nnamdi Chukwuocha (D) signed on as cosponsors to the since-rejected bill after pulling their support for the 2021 version over equity concerns. They’re also listed as cosponsors for the new HB 372.

In 2019, Osienski was the chief sponsor of a legalization bill that cleared a House committee but did not advance through the full chamber. That bill would have allowed medical cannabis dispensaries to begin selling marijuana to adults 21 and older while the rest of the adult-use industry was still preparing to launch, a provision that was removed from later versions.

Four of the state’s six medical marijuana companies came out publicly against that change and testified in opposition to last year’s bill. In response, Delaware activists mounted a boycott against those operators.

Portions of the most recent version of the cannabis regulations bills on expungements were removed this session, as they were made redundant by the enactment of separate legislation last year.

Meanwhile, despite his wariness about adult-use legalization, Carney did previously sign two pieces of marijuana expungement legislation. In 2017 and 2018, a state task force met to discuss issues related to legalization, and the governor hosted a series of roundtable meetings about cannabis.

A legalization bill previously received majority support on the House floor in 2018, but it failed to receive the supermajority needed to pass.

Carney’s predecessor approved a measure to decriminalize simple possession of cannabis in 2015.

An analysis from State Auditor Kathy McGuiness (D) released last year found that Delaware could generate upwards of $43 million annually in revenue from regulating marijuana and imposing a 20 percent excise tax. The legal market could also create more than 1,000 new jobs over five years if the policy is enacted, according to the report.

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