DOVER — Delaware’s marijuana decriminalization law goes into effect today, changing the penalty for cannabis possession from a misdemeanor with possible jail time to a civil violation and a fine. But while the change was hailed by the governor and activists, others, including members of law enforcement, remain skeptical.
Walkers in the annual Middletown Hummers Parade on Jan. 1, 2015, showed their support for decriminalizing marijuana. (Delaware State News file/Matt Bittle)
Signed into law June 18 after failing to make it through the General Assembly in 2014, the legislation overhauls many of Delaware’s drug laws, making the state part of a growing number of jurisdictions reducing the penalties for marijuana possession. The statute also is likely to require changes to police and prosecutorial practices.
While marijuana remains illegal, and smoking it in public is still a criminal offense, supporters expect the new policy will reduce the number of arrests for what they often argue is a nonviolent offense.
Any individual older than 21 years of age found to be in possession of a personal use quantity of the drug, defined as 1 ounce or less of leaf marijuana, now will face a civil penalty of $100. The same law applies for an adult using cannabis in a private area. Previously, such a person would be subject to an unclassified misdemeanor, three months imprisonment and a $575 fine.
Starting today, someone younger than 18 carrying or using any amount of marijuana could be charged with an unclassified misdemeanor, which has a potential fine of $100. Those between 18 and 21 would face a $100 civil fine on the first instance for smoking the drug in a private area or holding a personal use quantity, and a second offense would carry with it an unclassified misdemeanor charge.
Greater penalties would result from using marijuana in a car, carrying more than 1 ounce or having an aggravating factor.
Introduced by Rep. Helene Keeley, D-Wilmington, and later amended to help satisfy police, the legislation passed the General Assembly on party lines: no Republicans backed it, and no Democrats voted in opposition.
The United States as a whole has shifted to a more liberal view in regard to pot. A March poll from the Pew Research Center found 53 percent of respondents said the drug should be legal, up from 16 percent about 25 years ago. In Delaware, similar results hold, with a University of Delaware survey from October 2014 reporting 56 percent of people polled supported legalization.
Rep. Helene Keeley, D-Wilmington, introduced the legislation. (Delaware State News file/Dave Chambers)
“There’s definitely a generational shift going here,” Rep. Keeley said in January. “I mean, as I’ve said before, there are a lot of people out there who instead of going home and having a martini or going home and having a glass of wine, they want to go home and they want to take a couple hits.”
Nineteen states have decriminalized or legalized cannabis.
The pros and the cons
In Delaware, supporters championed the bill for reducing penalties that many saw as unduly harsh. Someone with a marijuana arrest would have a black mark on his record, often leading to difficulty finding employment or gaining college admittance.
Backers also argued marijuana arrests have a disproportionate impact on black men and women. A 2010 study from the American Civil Liberties Union found blacks made up about 22 percent of the population in Delaware but 48 percent of all people arrested for cannabis, something not unique to the First State.
“One person in particular had been arrested for a small quantity of marijuana and part of it is that now they have to check that they’ve been arrested and it’s very difficult for that person to find work, and if they can’t find work that pulls them back into the system to offend again,” Rep. Keeley said, relaying the story of a constituent.
A spokeswoman for Democratic Gov. Jack Markell said legalization will free up resources to be used elsewhere and limit the number of people incarcerated by the state.
But others have argued the bill could lead to unintended consequences.
“This is not, ‘I’m having a beer,’ because that has a spectrum,” Sen. Colin Bonini, R-Dover, said on the Senate floor in June. “And comparing this to alcohol is, in my opinion, I don’t think that’s a fair comparison. I have one alcoholic beverage, I am not impaired.”
Several law enforcement representatives raised concerns about the statute in the spring. Today, an element of wariness remains, although police officials acknowledge the intent of the law and stress law enforcement is taking a wait-and-see attitude.
Lt. Thomas Brackin, president of the Delaware State Troopers Association and a member of the Delaware State Police, said he fears police will no longer be able to conduct searches and obtain warrants based on stops for marijuana possession.
“Oftentimes you will see that those searches lead to other contraband in larger amounts, guns, etc,” he said. “The concern that we have is when you decriminalize that small amount of marijuana, what does it do to the law enforcement officer’s probable-cause ability?”
To that end, an amendment to the bill specified it was not intended to change current search-and-seizure laws or practices “concerning the operation of motor vehicles or other actions taken while under the influence of marijuana.”
Some supporters, including the main sponsor, feel the amendment watered down the proposal, but Rep. Keeley said she had to be willing to listen to opponents and is still open to changes if need be.
“I do feel while nobody walked away 100 percent, I still think we have a good bill, or a good law now, come Friday,” she said Wednesday.
The Delaware Department of Justice sent a memo last week to law enforcement agencies detailing the new procedures and explaining an individual can be detained but not arrested for carrying 1 ounce of cannabis.
“Officers must recognize that the designation of some ‘simple possession’ offenses as civil may impact the scope of an investigation,” reads the memo, written by State Prosecutor Kathleen Jennings. “An individual is not arrested for the civil violation; thus an officer may neither search incident to arrest nor engage in an inventory search of a vehicle where the investigation concludes with a civil violation. Having said this, where the facts and circumstances surrounding the encounter prompt a reasonable suspicion of criminal activity (i.e. possession of more than a ‘personal use quantity’ of marijuana), and a citation is not immediately issued, the investigation may continue.”
Chief Magistrate Alan Davis also sent a letter to colleagues in the courts in October summarizing the bill’s impact.
Delaware Fraternal Order of Police President Fred Calhoun said officers will adapt as need be as time progresses and possible obstacles arise.
“I don’t want to make a stand one way or the other,” he said, admitting concerns while also noting he understood the sentiment behind the law.
What impact the law has on search and seizure — and overall crime — only will be seen with time.
Lt. Brackin believes it is inevitable that a case involving contraband found after police conduct an initial search due to determining someone has a small amount of marijuana is challenged in the courts, potentially serving as a major test case that shapes future policy.
According to the Statistical Analysis Center, 2,632 people were arrested for marijuana possession in Delaware in 2013. Just nine of those did jail time, and all of those had accompanying charges.
Those facts support police claims law enforcement is not, in the words of Lt. Brackin, “running around knocking peoples’ doors down when you’re at home.”
Looking ahead
Zoe Patchell, co-chair of the Cannabis Bureau of Delaware, said the law marks a “first step in ending cannabis prohibition.”
While praising lawmakers and Gov. Markell for passing the bill, she hopes to see the state “tax and regulate cannabis like alcohol for individuals 21 and older.”
Some lawmakers and law enforcement officials have criticized the bill for being merely a step toward legalization, but Rep. Keeley refutes that charge.
Although some lawmakers, such as Rep. Sean Lynn, D-Dover, back legalization, that idea likely would face tough going in the General Assembly.
For now, many officials believe such a policy only should be put into place after extensive study of the other four states that have approved legalization.
“The last thing I want is for us to pass legalization and not have the restraints on how it’s sold, how it’s being marketed and how it’s being delivered,” Rep. Keeley said.
Gov. Markell is opposed to legalization, but his term is up in January 2017, and two of the candidates to succeed him have said they are open to considering regulating the drug.
U.S. Rep. John Carney, D-Del., “is supportive of the state’s new decriminalization law and believes we should wait to see how the law plays out before considering legalization,” according a campaign spokeswoman.
Republican Lacey Lafferty said she supports decriminalization but wants the legislature to carefully study the impact in the states that have legal pot before considering taking further steps.
“I have never met one person that did drugs that said, ‘I’m glad I did it,’” she said.
With the changing attitudes toward pot nationwide, full legalization may be just around the corner, particularly if the federal government chooses to change marijuana laws. Even if that is the case, however, the time line is very much in doubt.
Rep. Keeley said she does not see it occurring in the next 18 months but will “never discount” the possibility of legalization within five years.
While many people hope to see the state go further, for now they’ll take what is given.
The Delaware chapter of the National Organization for the Reform of Marijuana Laws will host a party this evening in Arden in celebration of the law taking effect.
“Any time you can stop criminalizing people from simply possessing a subject that’s safer than alcohol, it’s a good day’s work,” said Robert Capecchi, director of federal policies for the Marijuana Policy Project and an activist who worked to pass the bill.