When pot legalization fails: Plan B’s and ‘consolation prizes’


Democrats emerged from the 2018 election with control of state legislatures in New Jersey, New York, Connecticut, Illinois and New Mexico, where Democratic candidates had made marijuana legalization an election issue.

So this was the year legalization was supposed to sail through a number of state legislatures. But it hasn’t worked out that way.

Legalization efforts have stalled or failed in New Mexico, New Jersey, New York and Connecticut. There’s still a chance that a bill might get through the Illinois legislature before the session ends in less than two weeks, but it’s been encountering headwinds. Chances are it won’t be able to beat the clock.

So time for Plan B’s.

Fortunately, there are some.

None of the states where legalization bills flamed out allow ballot initiatives, where a proposed law or constitutional amendment is placed on the ballot by citizens circulating a petition. (With the exception of Vermont, all the states that have legalized recreational pot have done so by the petition route.) But while citizens in the five states can’t put a proposed law on the ballot, the state legislatures in at least some of them can. (The process is called “referral.”)

And legalization supporters in New Jersey and Connecticut are talking about doing just that. Polls have found support for legalization in both states as high as 60 percent, so legalization measures would have a good chance of passing if put on the ballot — assuming supporters don’t get over-confident and fail to mount a campaign.

But it shouldn’t be assumed that the votes are there in the legislatures of either state to put a measure on the ballot. To be sure, legislators opposing legalization can read polls as well as anyone, and voting to put legalization on the ballot would likely be an attractive way of preventing legalization from becoming an issue in their own re-election campaigns.

Assuming they’re running in a district where there’s a lot of pro-legalization sentiment. And assuming they’re even running for election in 2020.

Still, voting to put pot legalization up to a vote of the people is likely an easier vote for a lot of legislators than voting for it themselves. So the “let-the-people-decide” route to marijuana legalization is promising. But supporters shouldn’t take anything for granted.

The other Plan B’s are getting legislatures that won’t consider recreational pot legalization to pass bills expanding medical marijuana access, decriminalizing possession and expunging minor pot convictions.

This approach is getting traction not only in the states where full legalization has stalled, but in some others where it wasn’t considered.

In Texas, the lower house of the legislature passed bills to expand medical marijuana access and lower the penalty for possession of an ounce or less of pot to a Class C misdemeanor, the same as a traffic violation. The bills now go to the state senate, where their chances of passage are uncertain. Still, the fact that they passed the house, and by large margins at that, is progress.

In New Jersey, bills to expand the state’s medical marijuana program, decriminalize possession and expunge minor pot convictions are moving quickly through committees. Chances of passage look pretty good.

In New Mexico, after a recreational legalization bill was killed in a state senate committee, the legislature passed a decriminalization bill. New Mexico governor Michelle Lujan Grisham signed the bill that decriminalizes possession of half an ounce or less of pot early last month. Persons caught with up to half an ounce will face a $50 civil fine without a criminal record.

Late last month the Hawaii legislature sent a decriminalization bill to the governor’s desk. It reduces the penalty for possession of 3 grams of pot to a $130 fine with no jail time.

After missing full legalization, medical marijuana, marijuana decriminalization and conviction expungement bills may seem like consolation prizes, but they are important roll-backs of pot prohibition. And they are also a way for legislators currently opposed to full legalization to get more comfortable with the idea.