Justice Delayed in Delaware: Activists Respond to Cancelled Cannabis Vote

Cannabis legalization was making firm strides in the final weeks of Delaware’s 2021 legislative session. The First State looked firmly positioned to join Virginia, Connecticut, New Mexico, New Jersey, and New York in ending prohibition during the last several months. Suddenly, sweeping amendments delayed progress. Now, consumers will continue to face arrest and prosecution until, at least, 2022.

The adult use bill HB150 passed 10-5 in the House Health and Human Development Committee on March 24, 2021. Then, the Wilmington City Council voted on a resolution strongly supporting full passage of HB150 on April 17th. 

Polls continue to show increasing support among Delaware voters favoring legalization, often over 60 percent. 

A big moment arrived when a key House floor vote was scheduled for June 10th. Then, suddenly, HB150 was removed from the agenda hours before the scheduled vote.

The bill’s primary sponsor Representative Ed Osienski (D-24) commented after the 2021 vote was cancelled:

“Part of our effort has been to level the playing field for those most impacted by the failed war on drugs. However, including our proposed social equity fund would make House Bill 150 a 3/4 majority bill, per the Delaware Constitution. Simply put, we do not have the 31 votes necessary to pass the bill in its current state.

However, removing the fund — which would restore the original, attainable 3/5 majority — would create other concerns about our commitment to those communities. My charge at this stage is to find a compromise that all supporters can rally behind. When we reach that compromise, I will bring HB 150 forward for consideration. I am committed to continuing to work with all parties to find a solution that allows Delaware to become the next state to legalize adult recreational marijuana.” 

Delaware’s legislative session ended on June 30th, pushing the next opportunity for cannabis legalization in Delaware until January 2022, at the earliest. 

“We are disappointed that this urgently needed criminal justice and policing reform will be postponed yet another year”, said Zoë Patchell, executive director of Delaware CAN, “We were really hoping, for the sake of all the people and communities that are affected by cannabis prohibition daily, that lawmakers would come to an agreement before the end of session and finally end arrests and police contact for conduct that is now legal in eighteen States, and our nation’s Capital. 

Patchell noted that a 2015 decriminalization law was very limited, and cannabis possession arrests continue.

“The cost of waiting will result in thousands of lives ruined, continued targeted enforcement, particularly in poor and communities of color, and will likely result in an increase in cannabis offenses. We also expect consumers to flock to New Jersey and to start forming safe access networks,” said Patchell.

Laura Sharer, executive director of Delaware NORML, said, “Legalizing cannabis is about more than just allowing recreational use, or the money that can be made. This essential reform is about undoing a century of racist policies that disproportionately targeted Black and Latino communities. It’s about rebuilding the communities that have suffered the most harm. And it’s about ensuring that everyone has access to the opportunities that the legal cannabis market provides.”

“All of the arrests have failed,” noted Sharer, “With legalization we have a chance to implement cannabis policy focused on public health. The task now is to bring our lawmakers together to ensure the swift passage of this measure.”

Delaware NORML and Delaware Cannabis Action Network (CAN) have been holding letter-writing campaigns that have generated thousands of emails to legislators. With the bill remaining active, the groups are urging supporters to continue to contact their lawmakers in support of the measure.

As the House vote was imminent, Delaware Governor John Carney weighed in with strong comments against the bill. 

The Delaware News Journal reported: “When asked about Carney’s lobbying efforts with lawmakers, his spokesman Jonathan Starkey said Carney has ‘technical concerns with the legislation around finances and tax collection, public safety and public health’”. 

The delay also came as a result of a last-ditch effort from a few long-time opponents of legalization. They made scores of last-minute calls to legislators after the bill was scheduled for a vote, with the clear aim of either stopping or delaying progress.  

In a statement made to the News Journal, the Delaware State Troopers Association, a union that represents law enforcement officers, admitted to lobbying against HB150. The executive director of the union, Thomas Brakin, maintained the organization’s position that law enforcement needs to continue to use the odor of cannabis as an investigative tool. Brackin also attacked part of the criteria for determining social equity applicants as reasons for their opposition and lobbying against legalization.  

“We just don’t understand why convicted felons would have the opportunity, would have an added benefit to be able to get in for this business,” Brackin said.

That misinformed claim has been repeated by conservative Republicans, along with a smaller group of moderate Democrats.   

Because retail cannabis sales will include licensing fees and new tax revenue, a three-fifths super-majority was required in both chambers to pass HB150, even if the language regarding the social equity fund were resolved. This incredibly tall hurdle missed by just 4 votes when a similar bill came up for a vote in 2018.

Activists have been pushing for reform for nearly a decade. Grassroots groups of consumers and registered medical mairjuana patients are preparing for the final yards as early as possible in 2022.

“Legalization isn’t going to just happen in Delaware, it will take real work”, Patchell said with confidence. 

“We face well-funded, powerful opponents who aim to continue cannabis prohibition and uphold the control that it affords over our residents. Every year our lawmakers seem to give in to those powers. We don’t have the ability to place legalization on the ballot, and our legislative measure keeps facing a filibuster-like, supermajority vote requirement. That’s why we are dedicated to keeping our supporters and advocates on the diligent path, working together over the next several months to get Delaware into a better future with legal cannabis.”