On July 1, residents of Vermont, the first state to legalize by bill instead of by ballot box, were allowed to legally possess up to one ounce of cannabis and cultivate two mature plants at home.
The next day, Joe Benning, the Republican Senate Minority Leader, said his friend offered him a “celebratory toke on a joint,” now legal because of the cannabis law Benning helped create.
Benning has personal experience with what he calls America’s “completely asinine” war on drugs: in June 1975, when he was a teenager, friends in a band were smoking marijuana, and he was arrested along with them. Benning was adamant that he didn’t smoke, and police ended up dropping the charge against him. Yet, like so many with a cannabis arrest on their record, Benning felt lingering uncertainty about how the false accusation would affect his life (including nerve-wracking concern over a potential blemish on his record as he filled out the bar exam application after law school).
He vowed that if he were ever in a position to do something about cannabis laws, he would.
That’s why, as a matter of principle, he says, he didn’t think twice about last week’s offer. “I declined,” Benning told Cannabis Wire. “I like being able to stand up and say, ‘I don’t smoke, I don’t care to smoke, but I am a constitutionalist and a libertarian and I believe that people should be able to do in their own homes as they wish.’ We have traditionally been a place of live and let live.”
From the outside, it would seem that a state like Vermont, with its liberal outlook and libertarian philosophy, would have quickly embraced legalization. The state legalized medical cannabis in 2004 and decriminalized possession of small amounts in 2013. In truth, Benning told Cannabis Wire, Vermont is a cautious state and its voters don’t like to be told what to do, whether by liberals or conservatives. Instead, Vermont lawmakers plotted their own course, legalizing smaller amounts of cannabis while banning retail sales. Vermont’s lawmakers were determined to decide over time what would work best for the state as neighbors such as Maine and Massachusetts have, at times, struggled with how to implement their cannabis programs after successful ballot initiatives.
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Many credit former Gov. Peter Shumlin for beginning the discussion and pushing for cannabis law reform. Others in the statehouse also served as advocates, including Benning and Senate Judiciary Chairman Jeanette White. This approach, lawmakers said, worked to dispel fears and half-truths around charged issues like stoned driving and led to Vermont’s successful legalization this year. As state officials in nearby Rhode Island, Connecticut and, as early as this summer, New Jersey, prepare for their own cannabis legalization conversations and efforts in the coming months, Benning and state Rep. Maxine Grad say the state’s new, limited legalization effort represents a compromise, where lawmakers can gain consensus on how to govern cannabis rather than having to react to what can feel like a sudden shift on the issue when voters approve a ballot measure that imposes deadlines on lawmakers.
The moment Benning knew legalization was ripe for passage in Vermont was when Dick Sears (who couldn’t be reached for comment), the Senate chairman of the judiciary committee and longtime cannabis skeptic, came around to legalization in 2016. Benning explained that Sears was adamantly opposed when they first began working together, but then, “He spoke a lot with then-Gov. Shumlin and turned himself around. I was quite surprised when he changed his stance. I knew then it was going to happen.” Legalization finally became a reality in 2018, Benning said, because “it was the right politicians in the right place at the right time.”
Vermont’s gradual approach to legalization comes with drawbacks, some cannabis legalization proponents say. Because the state ranks second in the U.S. for prevalence of cannabis use both for teenagers and young adults, according to federal studies, that means a thriving black market may only be partially addressed. The state also has new, tougher penalties for possession and sales over an ounce.
Lawmakers have also already identified a loophole in the law: a VTDigger article that made the rounds covered a July 1 celebration in the state on the day the law took effect, nicknamed “Weedstock,” which included a woman giving away cannabis edibles for the price of a raffle ticket. Similar tactics to circumvent sales bans have cropped up in Washington, D.C., for example, which also legalized recreational use cannabis, but not sales. Confusion among both law enforcement and cannabis users alike points to the long term weakness of such a structure, as well as to the potential growth of a gray market.
Still, cannabis legalization opponents see Vermont’s approach of barring commercial sales as a partial win. Kevin Sabet, president of the advocacy group Smart Approaches to Marijuana (SAM), which lobbied lawmakers and organized a grassroots effort to oppose legalization in the state, told Cannabis Wire that he ultimately disagrees with Vermont’s legalization without sales approach, calling it a “slippery slope to sales.” Overall, Sabet said that while SAM supports efforts to decriminalize cannabis, the group believes normalizing the drug through legalization or storefronts will be harmful.
“The science is very clear” on cannabis, Sabet said. “It can be harmful and it can be addictive. We’re very concerned about the way it’s going and why it’s going so quickly. We want to emphasize treatment and early intervention. We don’t want to see this legalized or commercialized.”
Sabet said he’s confident Vermont won’t move forward with commercialized sales under Gov. Philip Scott, a Republican up for reelection in November. When Scott signed the legalization measure, he wrote a letter to the General Assembly saying he was doing so with “mixed emotions” and appointed a group called the Marijuana Advisory Commission to assess the law’s effect on the state and provide recommendations for next steps in a report due in December, ahead of the next legislative session in 2019.
The governor also reiterated his general reluctance on the issue, reminding lawmakers of his veto of a similar measure. “My S.22 veto message also plainly expressed my reservations about a commercial system which depends on profit motive and market driven demand for its growth,” Scott wrote after he signed the recent measure. “I look forward to the Marijuana Advisory Commission addressing the need to develop comprehensive education, prevention and highway safety strategies. To be very direct: There must be comprehensive and convincing plans completed in these areas before I will begin to consider the wisdom of implementing a commercial ‘tax and regulate’ system for an adult marijuana market.”
A Scott spokesman did not respond to a request for comment.
Rep. Grad, who is also Vermont’s House Judiciary Committee chair, said she expects future debate to emphasize whether the state can handle impaired drivers. Much of the concern in Vermont has centered around the fact that there is no easy-to-administer roadside test similar to a breathalyzer to enforce penalties against cannabis-impaired drivers.
Grad told Cannabis Wire that, ultimately, she supports working toward a system to tax and regulate cannabis, which would allow for revenue to flow to localities for prevention programs and new law enforcement strategies. Grad said that she thinks that issues like stoned driving “already exist today and they exist whether you’re talking about marijuana or other legal substances,” she said.
“There will always be an illegal market, but I really believe we can decrease the illegal market through a tax and regulate structure, including quality control and consumer protection,” Grad said. “So why not make it as safe as we can?”
Matt Simon, who leads cannabis reform efforts throughout New England for the Marijuana Policy Project, the organization behind most of the country’s medical and recreational use cannabis laws, said he will continue to make the case that lawmakers’ concerns can best be dealt with through a tax-and-regulate system.
“All of the things the prohibitionists say they’re concerned about can best be addressed by a regulated system,” Simon told Cannabis Wire.
Grad said there might be a legislative push for a framework to tax and regulate cannabis in 2019, in part because many lawmakers will face re-election in November. The Republican House minority leader, Donald Turner, who has said he plans to run for lieutenant governor, has advocated for a tax-and-regulate system along with Vermont’s Progressive Party, an odd symmetry that speaks to both the new bipartisan nature of cannabis and the state’s politics.
Grad said she was initially unconvinced as she heard from proponents touting a massive tax haul as a way to push lawmakers on cannabis. She said as she and other Vermont lawmakers waded through hours of calls and testimonies from Colorado experts and regulators, Vermont legislators become more comfortable with cannabis. “It really hasn’t been the disaster that people had thought,” she said. A group of state officials also took a trip to Colorado on a fact-finding mission in 2015, after a state-commissioned RAND Corp. study that assessed cannabis was published.
Benning, a member of the state’s Marijuana Advisory Commission, said the broad perspectives of those appointed means that it’s difficult to predict where they will land on how to handle cannabis issues going forward. He said the commission is more likely to lay out possible scenarios and best practices for different forms of tax-and-regulate, than to single out one approach. Benning personally wants to set up a system that favors small entrepreneurs.
“In the end, I doubt you’re going to see much change at all,” Benning said. I think you’ll see people say this was much ado about nothing.”
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