The commonwealth of Virginia is now the 16th state in the U.S. (along with the District of Columbia) to allow adults over the age of 21 to use and possess recreational marijuana. Each household can also have up to four cannabis plants for cultivation, as long as they’re out of sight from public view and out of range from people under the age of 21. 

Virginia is also the first state in the South to approve recreational cannabis legalization. With this new law, 43% of United States residents live in a state where marijuana is legal for recreational use. Ten years ago, that number was 0%. Recent polls show 67% of Americans nationwide now support legalization.  The original plan was to allow adults in Virginia to possess up to one ounce of marijuana beginning January 1st, 2024, but Governor Ralph Northam proposed amendments to scoot that date up by two and a half years, to July 1st, 2021.  

“Our Commonwealth is committed to legalizing marijuana in an equitable way,” said Governor Northam in a statement. “Virginia will become the 16th state to legalize marijuana—and these changes will ensure we do it with a focus on public safety, public health, and social justice. I am grateful to the advocates and legislators for their dedicated work on this important issue, and I look forward to this legislation passing next month.” The change in the bills were approved by a one-vote majority vote cast by Lieutenant Governor Justin Fairfax, a Democrat. Not a single Republican supported the measure. 

"While not everybody is in favor of moving this forward, the great majority of Virginians are and that's what this is about," said Governor Northam. "When you're in public service, you listen to Virginians and then move their thoughts and initiatives forward.

The Regulatory Framework

Senate Bill 1406 and House Bill 2312 eliminate criminal penalties for simple possession and changes laws regarding what were formerly marijuana crimes, as well as placing limits on the release of criminal records related to certain cannabis-related offenses. A system for expungements of things that are no longer crimes is set to be in place in 2025. The bills establish a regulatory and licensing structure for every step of the way, from seed to sale. Plus, it creates the following boards: 

• The Virginia Cannabis Control Authority
• The Cannabis Oversight Commission 
• The Cannabis Public Health Advisory Council
• The Cannabis Equity Reinvestment Board and Fund
• The Virginia Cannabis Equity Business Loan Program and Fund

SB1406 also includes provisions that provide support and resources for communities and individuals who have been disproportionately affected by the enforcement of drug laws throughout history.  That particular point was what certain Republican lawmakers said led to their objections. 

Virginia’s Joint Legislative Audit and Review Commission studied marijuana arrests in a report released in November 2020. Researchers found Black Virginians were over three times more likely to be arrested for possession of marijuana than white Virginians. That trend continued even after simple possession of marijuana was decriminalized in the commonwealth. Since July 1st, 2020, possession of small amounts of recreational marijuana was punishable solely by a $25 civil fine, and yet Black people in Virginia were still targeted with those tickets.

The new law also lets the Cannabis Control Authority suspend licenses of businesses that don’t let workers unionize or that pay an unfair wage. They also cannot classify more than 10 percent of workers as independent contractors. Some lawmakers objected to those rules as well. After the bill passed, Governor Northam wrote on Twitter, “This is a monumental step to address racial disparities in our criminal justice system and build an equitable, inclusive future for our Commonwealth.”

Divisions Over the Legalization Framework

There have been some complaints about the new law, even from Virginia organizations that support legalization. Right now, it’s illegal to bring small amounts of cannabis into Virginia from elsewhere in the country. Importing up to five cannabis from anywhere outside the Commonwealth would a Class 1 misdemeanor, punishable by up to a year in jail.

However, personal use quantities are not exempted from that provision in the law. The Marijuana Policy Project Foundation sent a letter to the Governor asking to change that. “We believe this provision, as currently written, would be a big step in the wrong direction. We recognize that it may be possible for the legislature to amend the law next year, but we think it would be reasonable and appropriate for you to request an amendment that exempts possession of up to one ounce from the new penalty,” the MPP wrote.

“Under federal law, bringing a small amount of cannabis into Virginia is no less or more illegal than the possession of cannabis within Virginia. Federal law in no way requires Virginia to criminalize cannabis, nor does it require Virginia to criminalize crossing state borders with a small amount. Meanwhile, we are optimistic that federal law will change in the relatively near future.”

That particular provision of the law requires a re-enactment vote in 2022, and the MPP says it plans to continue fighting to have it removed. Under the new law, it will still be illegal to smoke while driving or possess marijuana on school grounds. It is also illegal to sell without a license. 

Other States Reviewing Legalization Proposals

There are four more states that could still legalize marijuana within the year.  There are two proposals being considered in Connecticut. Governor Ned Lamont’s bill has already made it past the commonwealth’s Judiciary Committee.

Delaware’s House Health and Human Development Committee passed a marijuana legalization bill with a 10-5 vote. Next, it heads to the House Appropriations Committee.  Lawmakers in Minnesota are hoping to allow adults 21 and older to purchase and possess up to 1.5 ounces of marijuana and cultivate up to 8 plants at home. That bill has already soared through four different House committees and stops next at the Judiciary Finance and Civil Law Committee. However, it is expected to face some trouble in the state’s Republican-led Senate. 

And finally, Rhode Island’s Governor Dan McKee plus other legislative leaders have two separate marijuana bills in the works. Both okay the purchase and possession of up to one ounce of marijuana, but the Governor’s bill doesn’t allow for home cultivation. These budget proposals follow former Governor Gina Raimondo’s 2020 attempt at legalization through a state-run model.