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Is Delaware poised to make recreational marijuana legal?

Delaware Public Media

Previous efforts to legalize recreational marijuana in Delaware failed to gain traction. But with nearby states moving toward legalization, the First State is feeling some pressure to move on it now.


Delaware Public Media’s Roman Battaglia reports a bill to legalize recreational cannabis is coming to the legislature - and this time could actually pass.


Delaware’s lawmakers have been trying to legalize recreational marijuana since 2017, but have lacked enough support at Leg Hall.


State Rep. Ed Osienski (D-Brookside) is now the lead sponsor on recreational marijuana.


“So I’m hoping this is the year for us to get my bill passed. It actually started several sessions ago with Senator Henry and Rep. Keeley and I picked it up in 2019,” Osienski says. “But we’ve come up a couple of votes short so I'm hoping this year is different.”

Credit Delaware General Assembly
State Rep. Ed Osienski

Legal marijuana isn’t completely new to the state. Delawareans might notice one of six compassion centers throughout the state, which offer cannabis to medical patients.


A bill legalizing medical marijuana passed ten years ago now, and signed by then Gov. Jack Markell. But, according to Zoë Patchell from the Delaware Cannabis Advocacy Network, that didn’t mean smooth sailing for medical marijuana users.


“We formed in 2013 just after that measure had passed; however, the state was still not fully implementing the 2011 law,” she says. “They began issuing medical cannabis cards to patients however no dispensaries opened for the patients to have safe, legal access to their medicinal cannabis. So one of the first things that we address was trying to fully implement that program, get the dispensaries open and get the consumer safety protections for the medical cannabis patients.”


The state’s medical marijuana law stalled just after it was signed. Markell held off on actually implementing the law and permitting dispensaries to open. He cited a federal Justice Department memo suggesting it would prosecute anyone associated with the sale of medical marijuana, even in states approving the practice.


So — marijuana users were able to get cards from their doctors, but there was no way for them to access the drug.


The state’s medical marijuana industry remained in limbo for almost 3 years, before Markell finally started the process of opening dispensaries after the Justice Department backed off from enforcing marijuana legalization.


The first dispensary opened the summer of 2015, First State Compassion opened in Wilmington and more soon followed. 


And as of last year, there are over 16 thousand medical marijuana users in the First State — a number that continues to grow every year.


The state also decriminalized the drug back in 2015, albeit with concessions. Decriminalizing meant most marijuana possession cases turned into civil fines.


But for many cannabis advocates, medical marijuana and decriminalization are just stepping stones on the way to full legalization of the drug for everyone.


Almost all states that legalized marijuana started out with medical cannabis, and many decriminalized the drug.


Advocates such as the Cannabis Advocacy Network have been pushing state lawmakers to bring recreational marjuana to the state. And they believe the arguments and momentum are on their side.


State Auditor Kathy McGuiness released a report last month highlighting what legalizing recreational cannabis could mean for the state’s coffers.


McGuiness’ report found Delaware’s cannabis market size could be higher than $250 million — and create thousands of jobs in the state.


And, according to McGuiness, that’s just the bare minimum.


“We have a conservative estimate — so if more people decide to use it, or, if people decide to spend more money than the average, which we said was about $2,000 per user, that number could easily go up,” McGuiness says.


For example, McGuinesses’ report only cites that around 13 percent of Delawreans use marijuana, which came from a 2015-16 study by the Substance Abuse and Mental Health Services Administration. That number only reports people willing to say they use cannabis, meaning it’s likely a conservative estimate.


And now, nearby states are starting to legalize it.  Neighboring New Jersey approved recreational pot during the 2020 election - and enabling legislation to move that process along was signed this week.


So legal weed is coming to the Mid-Atlantic region, and Patchell says if Delaware doesn’t hurry up, much of that revenue could head to the Garden State.


“Those consumers want to make sure that they have a safe product. They wanna make sure that their cannabis is safe and free from contaminants and other harmful additives,” Patchell says. “So I imagine if Delaware doesn't take immediate steps to legalize and convert our pre-existing market into a legal market, there’s gonna be a lot of individuals who end up patronizing in the New Jersey market to ensure that the cannabis that they’re consuming is safe and it’s a product that’s been tested and is well labeled.”

There’s gonna be a lot of individuals who end up patronizing in the New Jersey market.


Legalizing marijuana doesn’t appear to be held back by Delawareans themselves.  According to a 2018 University of Delaware poll, 61 percent of people in the state support legalizing marijuana.


But, it isn’t up to Delaware voters - at least directly. Delaware doesn’t have ballot initiatives or referendums, beyond school district funding, and the legislature can pass constitutional amendments without voter approval, which is unique to the First State.


So, it’s up to lawmakers in Dover.  And getting marijuana legalization approved though state legislatures is the road less traveled.  Among the 14 states that legalized recreational marijuana so far, only 2 - Illinois and Vermont - did it through their state legislatures, All other states took the decision to the voters. 


But lawmakers backing pushing for legalization believe it can happen here this year.


A bill legalizing recreational cannabis is expected to be introduced in March by Osienski. It failed last session in part because it lacked the support of supermajorities in both chambers. Since it involves a tax, it requires 2/3rds support,  25 votes in the House and 13 in the Senate. .


Osienski says this year, some changes were made to the bill after talks with marijuana advocates, mostly focused on supporting the state’s minority communities.


According to the ACLU, Black people are four times as likely to be arrested for possession of marijuana in Delaware, which is higher than the national average.

Credit ACLU

This has been the case for decades, and advocates say just legalizing marijuana isn’t enough, there should be reforms that seek to repair the damage done to minority communities so disproportionately affected.


Osienski says he’s worked with advocates to address concerns surrounding racial justice, while creating space for small businesses to compete in the market.


“We have heard that currently around the country there’s a lot of like hedge fund investors and big marijuana companies and it kinda blocks out the local entrepreneur,” Osienski says. “So we’ve decided to try to address that with like a micro-business or a craft business license and also carve out for social equity applicants — which they’ll get some additional help with applying and some reduction in fees.”


Osienski says his team looked at other state’s recreational cannabis programs for ideas. Colorado, Michigan and Arizona all have specific social equity licenses. 


While the specifics haven’t been laid out in the Delaware bill yet, in Michigan, to qualify for a social equity licence, individuals or groups receive a reduction in fees if they live or plan to operate in a disproportionately affected community or have been arrested for marijuana possession in the past.


The craft business license allows more vertical integration. Craft license owners will be able to grow, manufacture and sell their own product, usually those licenses are given out separately.


Osienski says this would encourage a sort of ‘Budweiser versus Dogfish Head’ style competition, and adds many marijuana users enjoy the innovation that comes out of craft and small businesses.


But even with these changes - opposition remains. One long-standing opponent of this legislation is the law enforcement community.


Jeffery Horvath is the executive director of the Delaware Police Chief’s Council. He says often, legalizing weed doesn’t live up to the promises cannabis advocates make. 


He says he’s learned a lot from talking with other chiefs out in Colorado, the first state to legalize pot back in 2012.


“One of the chiefs out in Colorado when he was doing a presentation he said if you’re gonna fight anything in this recreational marijuana bills that are coming to your states fight the edibles,” he says. “He goes we’ve had more problems with those than anything.”


And that debate and others will play out at Leg Hall. Osienski says his bill could be filed any day now.


“We’re gonna try to get that out to my colleagues so they can see what’s actually in the bill and I can start getting my headcounts on my votes and hopefully when we get back in March from JFC break we’ll get this in committee, released from committee and scheduled on the house floor,” Osienski says.


And Osienski is optimistic with a moreprogressive legislature in place following November's election - the votes are there to get legalization over the finish line in the First State.


Roman Battaglia a corps member with Report for America, a national service program that places journalists into local newsrooms.


Roman Battaglia grew up in Portland, Ore, and now reports for Delaware Public Media as a Report For America corps member. He focuses on politics, elections and legislation activity at the local, county and state levels.