Is Full Legalization Coming in Maryland?
By Louis Peck
Since 2012, eight states have legalized the sale and use of recreational marijuana. In Maryland, the consensus among insiders isn’t if the state will adopt such a law, but when.
“The change on public opinion on this is as fast as we saw with marriage equality,” says Del. David Moon, a Takoma Park Democrat, who has sponsored legalization for the past three years. “In my first year, among both Democrats and Republicans, I had a lot of hesitation getting people to sign on as co-sponsors. By the third year, it was easier to get Democrats on board; I still didn’t get any Republicans, but some of them are seriously thinking about it.”
Moon and other supporters have been buoyed by recent polls—The Washington Post in late 2016 and Goucher College’s Sarah T. Hughes Field Politics Center this past September—respectively showing that 61 percent and 62 percent of Maryland residents favor legalization of the personal use of marijuana. Among the political establishment, state Senate President Thomas V. Mike Miller has indicated for the past five years that he supports the regulated sale of recreational marijuana. And his House of Delegates counterpart, Speaker Michael Busch, is signaling that he won’t stand in the way.
“I’m sure legislation is going to come before the General Assembly this [coming] term,” says Busch chief of staff Alexandra Hughes, “and depending on what the will of the House and the will of the Democratic caucus is, you could see something move forward sometime over the next four years.”
How quickly such a proposal progresses—and in what form—may be significantly linked to the results of this year’s November election. Democratic gubernatorial nominee Ben Jealous has embraced legalization and is touting the taxation of so-called “adult use” marijuana to fund prekindergarten education. Based in part on the experience of Colorado—with a population similar in size to Maryland’s—the Jealous campaign has estimated that sales could generate about $378 million in taxes annually.
Jealous’ opponent, Republican incumbent Larry Hogan, has been noncommittal so far about legalizing recreational marijuana. “At this point, I think it’s worth taking a look at,” Hogan told WRC-TV in Washington, D.C., this summer. “I was for medical cannabis,” he added, referring to the law signed by his predecessor, Democrat Martin O’Malley, in 2013 that legalized the sale of medical marijuana in Maryland. “I want to make sure we get that off to the right start, and we look at every aspect of the issue.”
Moon and other supporters of legalization remain uncertain where Hogan, if re-elected, will ultimately come down. Following the decriminalization of recreational marijuana in 2014, effectively turning possession of small amounts into the equivalent of a traffic ticket, Hogan vetoed a bill during his first year in office that Moon described as an effort “to fix the error in the decriminalization law that accidentally left criminal sanctions on marijuana paraphernalia.”
If Jealous becomes governor, proponents of legalization could seek to move it quickly via a legislative act of the General Assembly, with the assurance that the bill would be signed. While supporters are confident that a simple majority of both the House and Senate would back such a measure, they would have to muster a supermajority—three-fifths of each body—to override a potential veto if Hogan is re-elected. Such veto-proof margins currently exist in both houses, but Republicans hope to eliminate the Democrats’ supermajority in the Senate and are taking aim in November’s election at a half-dozen seats in competitive districts.
Moon has proposed putting legalization on the ballot as a constitutional amendment for Maryland voters to decide, and he seems inclined to stick to this strategy, at least for now. Although it would also take a three-fifths majority in the Senate and House of Delegates next year to get such an amendment on the ballot in 2020, legislation authorizing ballot questions is not subject to a gubernatorial veto. And Moon believes this approach could attract a number of members of the General Assembly’s Republican minority who so far have avoided a public position on legalization. In addition, in a recent response to a Baltimore Sun questionnaire, Hogan indicated he believes “a change of this magnitude and potential consequence would need to be decided by Maryland voters.”
Maryland is currently among 22 states to have legalized only the use of medical marijuana. Arguably, that program has been a double-edged sword for proponents of recreational marijuana, both in Maryland and elsewhere. “When people see firsthand that their grandmother with cancer is benefiting from medical cannabis, it often drastically changes their views on marijuana generally,” says Kate Bell, general counsel of the Marijuana Policy Project, a Washington, D.C.-based organization that has been involved in the passage of recreational marijuana laws in several states. But the five-year rollout of Maryland’s medical marijuana program has been plagued with problems, including complaints from African-American legislators that racial minorities were cut out of the process for granting licenses to grow and sell the product.
“Usually, the medical marijuana piece comes before the recreational piece, and we obviously botched the rollout of medical marijuana, for a lot of reasons,” says Democratic state Sen. Will Smith of Silver Spring, a Senate sponsor of the recreational marijuana bill that Moon introduced in the House in February 2018. Smith says he is “optimistic that things will move much more smoothly” in the wake of legislation enacted this year to address the problems surrounding the medical marijuana rollout.
However, problems with medical marijuana programs in other states have caused proponents to be leery about moving ahead on recreational marijuana without some safeguards. David Mangone, legislative counsel for Americans for Safe Access, a national group that advocates for medical marijuana patients, says changes in the licensing process for sellers in Washington state created a shortage of medical cannabis products, as some dispensaries sought to tap into the more lucrative recreational market.
“It’s not to say we are against full legalization,” Mangone says. “But I think Maryland still has a lot of work to do to get this market fully serving patients before they can really effectively serve a whole other set of consumers.”
Technology is another area of concern. Testing to measure impairment from marijuana’s psychoactive effects currently lags behind the ability to gauge intoxication from alcohol.
“The pushback I’ve heard is that whether it’s [related to] driving or the workplace, we don’t have any good test for impairment,” says one legislator who publicly favors legalization. This legislator, who didn’t want to be named in order to speak freely, concedes: “I think that resonates with people; they can completely buy into the idea of legalizing, but are uncomfortable when these topics of public safety come into play.”
Montgomery County Police Chief Thomas Manger sidesteps the question on whether he is for or against legalization, contending the issue is “too nuanced for that.” But Manger, who backed decriminalization, says he has “concerns” about full legalization, among them impaired driving and greater accessibility to marijuana for those under 21.
“If people have the discipline to use it once in a while in the privacy of their own homes and keep it away from kids, it’s not a public safety issue at that point,” he says. “But we can’t…create an environment where that’s assured.”