Should Delaware even get to the point where it can cross the finish line to legalizing cannabis, could it also do so equitably, achieving a system that serves those most impacted by decades of prohibition laws?
A recent forum hosted by Zoe Patchell of the Delaware Cannabis Advocacy Network invited panelists made up up of local and state officials alongside experts from across the county to discuss that very goal.
"Here in Delaware, African Americans are significantly disproportionately represented in every phase of the criminal justice system for cannabis offenses," Patchell said. "Data from the ACLU shows that black cannabis consumers in Delaware are 4.2 times more likely to be arrested for a cannabis-possession-only offense, than a white cannabis consumer."
Delaware is currently ranked 15th highest in the nation for racial disparities when it comes to those types of offenses, according to a 2020 ACLU report cited by Patchell. And while, recently, the First State has taken some steps to remedy how marijuana possession and use are regulated, it still has a way to go before it's fair, according to Wilmington City Councilwoman Shane's Darby.
"I am totally in support of...trying to make sure that, when we're talking about legalization of marijuana, that we're including this conversation about the inequities that have existed for decades," said Darby.
She acknowledged Delaware's steps in the right direction, but pointed out that it still falls short in eliminating the rule of law that disproportionately impacts communities of color.
"Delaware has taken some great steps into moving to this conversation. We have legalized medical marijuana. We started decriminalization, which is up to one ounce; small possession for recreational use. So I feel like the steps Delaware are taking, we are almost there," Darby said. "What we're seeing in other states, once it becomes legalized, is that it becomes a market, pretty much, for white men, who just take over the market. When in reality, the people who are most impacted [by prohibition laws] and who're getting left out when it becomes legalized, is the black community, black men."
Leading the legislative charge for cannabis legalization in Delaware since 2019, having taken over the initiative from retiring state lawmakers Sen. Margaret Rose Henry (D-District 2) and Rep. Helene Keeley (D-District 3), State Representative Ed Osienski (D-District 24) said those concerns are being addressed in his current drafted legislation.
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"We're feeling pretty confident this year, but we've listened to advocates, we have learned a lot. This is ever-evolving," he said. "We were hearing about Big Marijuana being an issue for local entrepreneurs; people in hard-impacted areas getting into the industry was an issue. So we wanted to address that and we've taken elements from social equity programs in California, Illinois, Michigan, Massachusetts."
Legislation has been developed by working closely with Patchell's group and other areas that have achieved legalization, Osienski said, with a particular focus on finding ways to make sure those previously affected can now profit from a modification in law.
"To be eligible for social equity, you could have a conviction of any marijuana-related offense, or be married to or a child of a person who was convicted. So we have those things in there," the representative said. "We have discount fees in our social equity program. We have technical assistance for applicants. We're developing low-interest loans, grants...and we do have expungement language for all prior cannabis offenses which are legalized under this new legislation."
He also said, when possible, licensing for growing and distribution would be handled in an equitable manner, with certain portions set aside for certain communities or populations.
"We're also happy we're adding social equity licenses. So, when it comes, we have four categories of licenses: retail, testing, cultivation, and product manufacturing," Osienski said. "We're taking half of the retail licenses, which are going to be set aside for social equity; A third of the cultivation licenses will be set aside for social equity applicants; a third of the product manufacturing licenses will be set aside for social equity; and we're also creating like [New Jersey], the micro-business licenses, which are a smaller business footprint for a license. We are happy to say that we are addressing everything."
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Before it ever gets to the governor's desk for a signature, which itself would take some convincing given John Carney's previous approach to the issue, legislation would first need three-fifths support from the General Assembly, a struggle Osienski acknowledged is made more difficult by trying to keep as many people as possible happy with the language progress. He urged patience if a "baby steps" approach is needed.
State Auditor Kathy McGuiness, who recently announced an analyzation of the data suggested hundreds of millions in contributions to the state economy from legalization, and thousands of jobs over five years, from a strictly economic approach of the subject, not even touching on the equality aspects.
"We're talking about prohibition and the fact is, decades of prohibition have done little to prevent the sale of recreational use of marijuana in Delaware," she said. "What prohibition has done instead is allow an illicit market to thrive...We thought, to reform our criminal justice system in an honest way requires that we stop criminalizing marijuana. And we do recognize communities of color have been hurt the most by prohibition, and revenues generated by regulation could be reinvested to help repair years of damage from some policies."