Vermont Legislators Prepare for Historic Cannabis Reform Vote

MONTPELIER, Vt. — On Wednesday, the Vermont’s legislature may (again) make history when they vote on S.22, a cannabis compromise bill that would combine the House-passed ending of criminal penalties for small amounts of personal possession and home cultivation (legalization) and the Senate-preferred tax and regulate approach.

The Bill

Following the same legalization provisions of the House-passed H.170, the bill would legalize the personal possession and home cultivation of (very) small amounts of cannabis without penalty — effective July 2018. While historic, the law is extremely conservative compared to neighboring New England States: the one ounce possession limit is 1/10 of neighboring state Massachusetts (10oz) and less than half of Maine (2.5oz). The one-ounce figure does not include the cannabis harvested from the allowed two mature (showing buds) plants and four immature plants, that would be allowed per household under the bill.

The most immediate and direct consequence of the bill is creating a nine-member commission that will meet before August 1, and by November 1, present the legislature and Governor with recommended legislation for a regulated system for legal adult use of cannabis.

Whatever the committee composition, the description of what they’ll specifically address is a beautiful piece of politically-appeasing legalese that’s both intentionally vague and intentionally conservative: “legislation that establishes a comprehensive regulatory and revenue system for an adult-use marijuana market that, when compared to the current illegal marijuana market, increases public safety and reduces harm to public health.”

The ‘Marijuana Regulatory Commission’ that would meet throughout the summer and fall and be responsible for this recommended legislation, would be a nine member mix of legislators from both houses, two members of the public (selected by the Speaker of the House and the Committee on Committees, respectively) representatives from the Attorney General and Secretary of Agriculture, Food and Markets, and one member appointed by the Governor.

The bill also takes the significant step of acknowledging, via the General Assembly findings section of the bill, acknowledges officially the problem of racial bias in policing in Vermont, specifically related to the criminal consequences for cannabis:

A 2013 report by the American Civil Liberties Union, The War on Marijuana in Black and White, identified Vermont as 15th in the country and first in New England when comparing discrepancies in citation and arrest rates for marijuana possession. The report stated that African-Americans in Vermont were 4.36 times more likely to be cited or arrested for marijuana possession than whites, higher than the national average of African-Americans being 3.73 more likely than whites to be cited or arrested for marijuana possession. Although Vermont later decriminalized possession of small amounts of marijuana, a 2016 report by Human Rights Watch and the ACLU, Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, found that Vermont had the third-highest racial disparity in drug possession arrest rates in the country despite nearly identical use rates.

The History

By passing S.22, Vermont would become the first state legislature in the United States to effectively legalize cannabis. Each of the nine states that have legalized and/or regulated cannabis for adult use have done so via a popular vote on a ballot initiative or binding referendum, so Vermont truly would make national history — even if slightly overshadowed by national inter-governmental investigations at the time.

For those in other states who already assume Vermont legalized cannabis in the mid-1970’s, it’s often a surprise to learn that since the ratification of the Vermont Constitution in July 1793, the only way that legislation can become law in Vermont is through the General Assembly. No referendum, no ballot initiative, no other way for cannabis reform than through the two chambers of the legislature and past the Governor’s Desk.

Vermont medical cannabis breakthroughs came in the 2003-2004 biennium thanks to the dedicated efforts of a host of tireless advocates (shout out to Tucci, Vinnie, Virginia, Nancy, Fran, Dr. McSherry, Kalev, Monique, Hardy Machia, and many, many more who came before and during them; and RIP Shayne Higgins) and legislative advocates (then-Representative and now Lt. Governor David Zuckerman among them), the 2003-2004 legislature broke ground and made Vermont cannabis history by passing the conservatively titled S.76, “Marijuana Use by Persons With Severe Illnesses” to first legalize medical marijuana usage (and home cultivation) for Vermonters. Significantly, it was Vermont’s Republican Governor, Jim Douglas who in 2004 — despite calls from the George W. Bush White House urging him to veto — allowed S.76 to become law without his signature.

Under Governor Peter Shumlin, the state decriminalized small amounts of cannabis possession in 2013, but still managed to double the amount of marijuana possession tickets issued the following year (over 1360). Significantly, the state legislature had also commissioned a report by the RAND Corporation titled, “Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions” that, among other things, gave advocates and legislators both a snapshot into the size of the cannabis-using population in Vermont (over 80,000) and the existing illegal cannabis market ($100-225 million annually).

Strengthened by the Vermont RAND data and increasing national recognition of regulated cannabis in other states, momentum continued into the 2015 session when longtime reform advocate, then-Senator David Zuckerman (D-Chittenden), and allies in the House proposed and sponsored a tax and regulate bill (S.95).

While the Zuckerman and House bills mostly stood idle during the 2015 legislative session, by the summer, advocates would pick up a powerful, if not opportunistic, ally in Governor Peter Shumlin, whose political star had fallen precipitously and whose most (read: only) popular political platform at the time was drug reform.

Searching for a political victory on the way out of the door and bolstered by calls from ambitious allies and enthusiastic advocates, Shumlin rallied his allies in the Senate and took up the cause of cannabis regulation and reform with the bill, S.241, an expansive and ambitious regulatory framework. 

Although there had been existing allies and regulation legislation on the table (Zuckerman’s S.95 and its House counterpart were ignored), the emergence of new Vermont advocacy groups such as the Vermont Cannabis Collaborative, and a renewed regional energy brought on by impending Maine and Massachusetts referenda, brought regulation questions into the spotlight in the fall of 2015 and both the 2016 legislative session and campaign season.

As most Heady Vermont readers know and remember well, the saga of S.241 was more tragedy than triumph as a tropical storm of political forces (including Speaker of the House Shap Smith waffling on both the decision to run for statewide office and prioritization of cannabis reform) and outspoken opposition — including from armed and uniformed police — combined with dissatisfied pro-cannabis supporters who rallied to ‘kill the bill’, thanks in part to its lack of legalization for personal home cultivation. Last spring, those forces combined and created a full-blown political shitstorm that led to calamitous House floor debates and ultimately the failure of the legislature and Shumlin Administration to pass even a stripped down version of the bill that would have decriminalized home cultivation.

The Politics

Building on the 2016 defeat of S.241, the legislative approach in 2017 was based on separating the various questions of cannabis reform, especially the criminal justice reform aspects from the regulation questions. This split mirrors the divide in the Vermont legislature in which most of the House prefers to prioritize legalization before addressing complex tax and regulate plans, whereas the Senate prefers to start the process of ironing out regulation details before addressing home cultivation.

In this way, the final version of S.22  that will be voted on in Montpelier on Wednesday represents a true compromise measure that leaves all sides with a stinging twinge of ideological desire for more, but enough satisfaction to claim a well-deserved political victory. Unlike the final reaction to the 2016 proposals, which Senator Dick Sears (D-Bennington) famously, furiously, and hilariously called “a piece of shit” to reporters in May 2016.

Sen. Sears on #VT House #marijuana alternative: ‘This isn’t a compromise, it’s a piece of s***!’ #vtpoli Voting begins shortly.

— Stewart Ledbetter (@StewartMyNBC5) May 3, 2016

In this compromise, those who favor DC-style legalization to regulation can rightfully claim a victory because the bill separates and insulates the issue of home cultivation from future regulation. With all future cannabis reform bills after this, personal possession and home cultivation will be afterthoughts compared to tax structures and lucrative licenses.

Those who favor regulation can also rightly claim victory because with a full study and the 2018 legislative session to pass a bill, they are not technically legalizing before taking steps to study and regulate while also making serious progress in addressing the details of regulation (during the offseason instead of on-the-fly during the legislative session).

While fiercely independent, outspoken, and passionate cannabis reform advocates have legitimate complaints (that they’ll surely voice) that the bill doesn’t go nearly far enough or should be implemented immediately, all will be witnesses to history with the passage of S.22.

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