Behind Virginia’s mystery marijuana provision: Measure came from Governor’s office, with help from two Democrats

Ryan Suit tries to keep a close eye on marijuana legislation.

As the co-owner of a Virginia Beach shop that sells cannabinoid products, he doesn’t want to be caught off guard by new rules or regulations. Yet even Suit was shocked to learn that, buried within the state’s recently unveiled budget proposal, is a provision that would create a new criminal misdemeanor for marijuana possession.

“They essentially weaponized the budget proposal against cannabis,” he said.

Suit said he was unaware the budget conference committee was even considering the measure — and he isn’t the only one blindsided.

Lawmakers tried twice to make marijuana possession a misdemeanor during the regular legislative session this year. But when both bills failed, they used the back door.

Two Democratic lawmakers played key roles in slipping the criminal statute into the budget — meant for laying out the state government’s finances. It was a horse trade at the 11th hour; one was carrying out the wishes of the Gov. Glenn Youngkin’s office in exchange for legislation she wanted. The other introduced the provision to his three-person group hammering out budget details.

Now a mix of lawmakers, organizations and others are slamming those involved for treating the budget like the legislative version of a drug mule.

“Lawmakers are adding new criminal penalties for marijuana via the budget process without any public input, despite the disparate impact this will have on Black & Brown folks,” the American Civil Liberties Union of Virginia tweeted. “We should all be outraged.”

One of the marijuana bills came from a Democrat from Fairfax. It was continued to 2023 by a House committee.

The other had a journey that helps explain why the governor’s office looked to the budget to carry the legislation.

That bill, from Republican Emmet Hanger, didn’t originally include the misdemeanor provision; it would have prohibited the sale of edible cannabis products in shapes like animals that appeal to children.

The bill sailed through both chambers with ease and landed on Youngkin’s desk for final approval. Instead, Youngkin added the criminal misdemeanor language, and more, and sent it back to the Senate.

This time, the bill died in a committee.

So Youngkin turned his attention to the budget.

The regular legislative session ended March 12, but the House and Senate’s proposed budgets were still roughly $3 billion apart. A committee of lawmakers was then convened to resolve any differences and create a budget both chambers would be willing to pass.

The budget conference committee was comprised of 14 members but, as it turns out, most of them were marginalized. The two leaders of the committee decided that they and a third lawmaker would hammer out the details on their own and brief the rest of the committee as they went along.

The threesome included House Appropriations Chair Barry Knight, R-Virginia Beach; Senate Finance and Appropriations Chair Janet Howell, D-Fairfax; and Sen. George Barker, D-Fairfax.

“If it had been 14 people all trying to negotiate on that, it would have been very difficult and would have taken even longer,” Barker said.

Most of the committee members’ communication occurred through back channels — a mix of verbal updates and emails. Had they met as a committee regularly, the discussions about marijuana possession penalties would have been open to the public.

“We heard bits and pieces of what (the marijuana provision) might be and what it might look like coming out in the budget, but not really exactly what it was until the budget itself came out,” said Sen. Mamie Locke, D-Hampton, a committee member.

“I would much rather have known in advance and had it discussed in advance.”

The provision stipulates that anyone caught in public with more than four ounces of marijuana — and less than a pound — could be charged with a misdemeanor. A subsequent offense would still be a misdemeanor but with a stiffer penalty.

Barker acknowledged he brought the marijuana provision to three-person group, but said it was delivered to him by another Democratic senator, Barbara Favola.

Favola, of Arlington, confirmed that she brought the provision to Barker but said she didn’t agree with creating the new misdemeanor.

“I don’t think we should have criminal justice type provisions in budget language; I think they really do merit full conversations,” she said.

Favola said that language came from the governor’s office.

Youngkin spokesperson Macauley Porter confirmed Favola’s assertion, noting that a nonpartisan commission associated with the General Assembly had recommended the changes so there would be more gradual penalties for those caught with marijuana in public before getting hit with a felony. That commission, known as JLARC, conducts policy analysis for the General Assembly.

“Even states that have retail (marijuana) sales have limits on possession,” Porter wrote.

The reason why Favola agreed to deliver it to Barker: The marijuana proposal included something she wanted — a handful of measures intended to prevent children from ingesting cannabis, such as banning the sale of products that were in the shape of a “human, animal, vehicle, or fruit.”

“The whole issue of packaging — that’s where my mind was at,” Favola said. “That was really the only thing that motivated me to even talk about this was the safety (issues).”

After reviewing the proposal, Barker said the threesome agreed to include it in the budget. He said legislators needed to take action in order to help the state prepare for 2024, when retail sales of marijuana are slated to begin.

Knight defended the move by noting the JLARC recommendation and that it was a bipartisan effort.

Since the budget negotiations were held behind closed doors, the public, the press and even most lawmakers didn’t learn about the marijuana provision until the budget proposal was posted online three days before being put to a vote June 1.

By that point, lawmakers who objected felt their hands were tied, as they would have had to vote down the entire proposal to stop the marijuana measure from clearing the General Assembly.

Some lawmakers also slammed the budget committee for what they described as a lack of transparency.

On the House floor, Del. Marcus Simon, D-Fairfax, said this year’s process was the most hidden “we could have imagined.”

“God forbid (the committee would) actually have to have a public meeting and invite the press and the public and the rest of us in to know what it was they were talking about,” he said. “So that’s the result that you get here; you get bad policy on the recriminalization of marijuana.”

As news of the new possession penalties spread, some organizations protested the move.

Chelsea Higgs Wise, executive director of Marijuana Justice, said the coalition had fought off new crimes during the legislative session this year and that there was “no reason for leadership to believe this process nor policy reflects the will of the people.”

Lawmakers and the public have a valid reason to be upset, said Justin Kirkland, associate professor of politics and public policy at the University of Virginia. The purpose of a budget is to ensure government agencies have the funding needed to carry out their missions, he said, not to enact new crimes.

Using the budget to pass legislation is appealing to some lawmakers, Kirkland said.

“People don’t really pay attention to budget negotiations really carefully and many of them happen behind closed doors so that gives (lawmakers) lots of opportunities to do things and just hope they’ll get swept under the rug,” he said.

Virginia isn’t the only state struggling with secretive state budget processes.

There has been a nationwide push for more transparency surrounding state budgets since the 1990s, according to Benjamin Melusky, assistant professor of political science at Old Dominion University.

But Melusky said creating a budget is a tenuous procedure that involves a series of compromises. If everyone starts to weigh in, some lawmakers argue it would only derail the process, he said.

“At the end of the day, the budget process is complicated,” Melusky said. “But that doesn’t mean there still isn’t room or potential or a need for a little more public transparency in the process. There is room to grow here.”

Katie King, katie.king@virginiamedia.com