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The state Senate approved a bill Friday that would prohibit search and seizures based solely on the odor of marijuana, which activists say is a step toward ending adverse enforcement against marginalized communities.

Senate Bill 5029, introduced by Sen. Louise Lucas, D-Portsmouth, passed on a 21-15 vote. 

Chelsea Higgs Wise, executive director of Marijuana Justice, a nonprofit pushing for the statewide legalization of marijuana, said her group is excited to see the bill move forward.

“This is a small but important step to decriminalizing Black and brown bodies of being targeted by this longtime policing tool, which was really created by politicizing the war on drugs,” Higgs Wise said.

Black people are more than three times as likely to be arrested for marijuana possession in Virginia compared to white people, according to 2018 data from the ACLU. Even after marijuana was decriminalized in July, Higgs Wise said police stops initiated on the smell of marijuana continue to adversely affect minority groups.

“The odor of marijuana is something that our undocumented community is anxious about because it’s life or death and separation from their families,” Higgs Wise said.

Higgs Wise said there is still “a long way to go” before demands for full marijuana legalization are met, but right now she wants legislators to focus on ending the enforcement of remaining marijuana-related penalties.

Marijuana decriminalization legislation approved by the General Assembly earlier this year went into effect in July. Possession of up to an ounce of marijuana results in a $25 civil penalty, reduced from a $500 criminal fine and 30 days in jail for having up to half an ounce.

Higgs Wise said true reform goes further: clearing records, releasing people jailed for marijuana offenses and eliminating the $25 fine. 

“All of that has to stop to meet the full demand of legalization and fully, truly decriminalizing marijuana and Black and brown bodies in the eyes of the police,” Higgs Wise said.

The Virginia Association of Chiefs of Police opposes the bill, said Executive Director Dana Schrad. 

“Enacting this type of legislation allows and promotes smoking of marijuana while operating a motor vehicle, which is a fundamental disregard for maintaining a safe driving environment for motorists,” Schrad said in an email.

Other amendments in the bill reduce certain traffic violations from primary to secondary offenses, which Schrad said could make it difficult for officers to issue citations on the road, creating risks for other drivers.

The bill, and another in the House of Delegates, reduce other traffic penalties from primary to secondary offenses, such as driving with tinted windows or without a light illuminating the vehicle’s license plate.

Claire Gastañaga, executive director of ACLU Virginia, said police have “gotten comfortable” with using the smell of marijuana as a pretext to stop and frisk.

“Occasionally, they’ll find evidence doing that of some other criminal activity, but many times they don’t,” Gastañaga said. “As a consequence, it provides an excuse for essentially over-policing people who have done nothing wrong.”

Gastañaga said the end of the overcriminalization of Black and brown people will come after legislators legalize marijuana and commit to reinvesting equitably in those communities. A resolution approved by the General Assembly earlier in the year directed the Joint Legislative Audit and Review Commission to study and make recommendations for how the commonwealth should legalize marijuana by 2022.

Gastañaga said SB 5029 sends a strong message to the police and the public.  “This would take [away] that pretextual tool for police stopping people on the street, or for demanding to search a vehicle.”

The bill needs approval from the House of Delegates and a signature from Gov. Ralph Northam before it can become law, which would take effect four months after the special session adjourns. 

House Bill 5058 similarly aims to end police searches based on the odor of marijuana. The bill, introduced by Del. Patrick Hope, D-Arlington, was reported Wednesday from the House Courts of Justice committee by a vote of 13-7.

“A disproportionate number of people pulled over for minor traffic offenses tend to be people of color,” Hope said during the committee meeting Wednesday. “This is a contributor to the higher incarceration rate among minorities.”

Fairfax Commonwealth’s Attorney Steve Descano said during Wednesday’s meeting that when people feel they are being targeted by the police, they’re less likely to report crimes or act as witnesses in prosecutions. He said ending such traffic stops is necessary to reform the criminal justice system and make communities safer. 

“Reforming our criminal justice system means bringing back legitimacy to it,” Descano said.

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