Rhode Island Senate Committee Discusses Marijuana Legalization Bill, With Advocates Urging Equity Revision

A Rhode Island Senate committee on Tuesday held the first hearing on a much-anticipated bill to legalize marijuana in the state. But while activists are eager to end cannabis criminalization, the measure faced pushback over a key provision concerning the proposed process for expunging prior convictions.

The bill from Sen. Joshua Miller (D), which was unveiled earlier this month, was heard in the Senate Judiciary Committee. A companion House version from Rep. Scott Slater (D) has not yet been scheduled for a committee hearing.

This development also comes two months after Gov. Dan McKee (D) included a proposal to end cannabis prohibition as part of his annual budget plan.

Miller, who sponsored an earlier legalization proposal that was approved in the Senate last year, told fellow lawmakers that “observing and incorporating what works best in other states has helped to guide us to what we have before you today.”

Preempting concerns about expungements language that would later be voiced by advocates testifying at the hearing, Miller said “we’ve made our best attempt” to get the provisions right.

“The courts have been involved, the attorney general’s been involved, many of you have been involved,” he said. “And we see this as an ongoing discussion on how expunged or sealed records will proceed forward.”

.@SenatorMillerRI testifies before the Senate Judiciary Committee regarding the RI Cannabis Act to legalize and regulate cannabis, a proposal he has championed for many years. pic.twitter.com/5qnoIUUGHu

— Rhode Island Senate (@RISenate) March 15, 2022

The senator also stressed that he is broadly open to feedback on and changes to the bill as it moves through the legislative process.

“Many of the people who contacted me are concerned that their issues wouldn’t be taken seriously going forward,” he said. “And I have consistently said their input is not only important but critical to the process of getting this right so we are in a position to vote on it. I feel strongly that this will result in a better bill.”

The legislation as drafted would create a system of licensed businesses to produce and sell cannabis while allowing adults 21 and older to purchase and possess up to an ounce. They could also grow up to six plants at home, three of which could be mature. The allowable possession limit for marijuana stored in a given household would be maxed out at 10 ounces.

The Senate panel did not vote to advance the legislation at the hearing and instead held it for further study.

The bill’s introduction followed months of negotiations between legislative leaders and the governor’s office about what a regulated cannabis market should look like in the Ocean State.

One of the main questions that has divided legislators concerns whether adult-use marijuana should be regulated by an existing agency or a newly created body. Lawmakers ultimately decided on hybrid model, with responsibilities being shared by a new independent Cannabis Control Commission (CCC) and a Cannabis Office under the Department of Business Regulation (DBR). A new advisory board would also assist.

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House Speaker Joseph Sherkarchi (D) previously said that he’d be open to a compromise on regulatory structure and hinted at the possibility of the hybrid model.

Liz Tanner, director of the state Department of Business Regulation, said at the hearing that the bill lawmakers are considering is largely “in alignment” with the governor’s plan “in several important respects.” But she did point out several areas of concern for the administration, including that it raises potential separation of powers issues with its proposed regulatory structure.

“Without question, momentum and progress towards legalization of adult-use marijuana continues to build in Rhode Island,” she said. “There exists a large degree of consensus on a large number of important components of this issue, and just as importantly on an approach that emphasizes public health, public safety and a vital and competitive industry for Rhode Island’s businesses and consumers.”

Under the Senate legislation, legalization of possession of up to one ounce would begin on October 1, 2022—and sales would start then too, though it’d be initially limited to existing medical cannabis dispensaries that pay a fee to operate as hybrid medical-recreational retailers. Possession of more than one ounce but up to two ounces for adults 18 and older would be decriminalized, with people facing a civil penalty without the threat of jail time.

Advocates are pushing for comprehensive reform and an end to criminalization, but they’ve also made clear their desire for a revised expungement provision that puts the onus on the state to automate record sealing for those with prior marijuana convictions.

As introduced, the legislation would require people with prior convictions for possession of up to two ounces of marijuana to petition the courts in order to have their records expunged.

At the same time that we’re legalizing cannabis, we also need to make sure that we’re addressing the impact that past offenses have on residents and that they’ll continue to have even after legalization, unless the legislature does something about it,” Jivan Sobrinho-Wheeler of the Working Families Party told lawmakers at the hearing. Expungement needs to be state-initiated and it needs to be automatic rather than through an individual petition process, which is what’s currently in the legislation.”

Jordan Goyette of Reclaim RI said that making it easier to expunge records would have benefits beyond the directly impacted individuals.

“Just think of the economic impact of removing barriers to employment for thousands and thousands of people, especially at a time when we greatly need that to happen,” he said.

Jared Moffat, state campaigns manager for the Marijuana Policy Project, told lawmakers that “of the 18 states that have legalized cannabis, 11 of them have implemented a state-initiated record clearance process, and the policy has proven to be much more effective than a system that requires individuals to request that action be taken.”

“State-initiated record clearance will be a far more efficient use of state agencies resources compared to a case-by-case system,” he said.

Cherie Cruz, co-founder of the Formerly Incarcerated Union of RI, said that “in order to begin to repair the harm of this failed war on cannabis, we need to ensure that a state-initiated record clearance process is put in place to expunge the records of thousands of Rhode Islanders who have been criminalized for the same activity that is now legal.”

Activists have consistently rallied behind an agenda for reform that emphasizes the need for bold social equity provisions.

“The bill should be amended to put the burden of action on the state, not those who have already been harmed by unjust cannabis criminalization laws,” the advocacy group Yes We Cannabis Rhode Island said in a Facebook post ahead of the hearing.

In contrast to the bill that was taken up in committee on Tuesday, the governor’s legalization plan would provide funding for automatic expungements, without language requiring a person to petition the courts to receive that relief.

Meanwhile, under the new legislative proposal, adult-use marijuana sales would be subject to the state’s seven percent sales tax, a 10 percent excise tax and a local three percent tax for municipalities that allow cannabis businesses to operate. Localities would be able to opt out of permitting marijuana businesses if they put it to a vote on the November 2022 ballot.

For the initial rollout, a total of 33 marijuana retailers could be licensed. Twenty-four of those licenses would be new standalone adult-use retailers, divided up equally between six geographic zones of the state, and nine other hybrid licenses could be approved for existing medical cannabis dispensaries if they pay a $125,000 fee for the privilege to add recreational sales.

Of the 24 standalone retailers, 25 percent would need to go to social equity applicants and another 25 percent would be for worker-owned cooperatives.

Another area of contention surrounding the legalization measure raised at Tuesday’s hearing surrounds how the recreational market would intersect with the existing medical cannabis one.

Patient advocate Ellen Smith told lawmakers that “there’s not one thing in it to help the patients of this state,” pointing out that the legislation would not remove fees for patients to participate in the medical program and grow their own plants so that they could be be on par with recreational consumers who would have no such added costs to entry to the adult-use market.

“So what about the patients?” she asked lawmakers. “Shouldn’t we take that charge away from us and let us go back and live our life and not pay fees that people recreationally are not even going to have to touch? It doesn’t make any sense.”

Separately, advocates also voiced opposition to a different bill that the committee discussed at the hearing that would require marijuana business owners, workers, cultivators, medical cannabis patients, practitioners and caregivers to submit to criminal background checks. Those with felony convictions would be denied from being able to participate in the program under the proposal.

For the Miller legalization bill, part of the money collected from cannabis licensing fees would support a new “Social Equity Assistance Fund.”

The fund would “provide assistance to applicants from communities disproportionately impacted by prohibition of cannabis,” according to a summary.

Equity business applicants would need to meet one of several criteria to qualify, including at least 51 percent ownership by people who have resided in a disproportionately impacted area for five of the past 10 years, 51 percent ownership by people who have faced arrests or convictions over offenses that would qualify for expungements under the law or having income that does not exceed 400 percent of the median income in a disproportionately impacted area for five of the past 10 years.

A business that has at least 10 employees, with at least 51 percent residing in disproportionally impacted areas or who have been arrested or convicted for an expungable offense offense under the bill would also qualify as would being able to demonstrate significant experience in types of businesses that promote economic development.

Senate President Dominick Ruggerio (D) said in his session opening remarks in January that the bill the body passed last year “included substantial measures to rectify the wrongs associated with the decades-long policies of prohibition.”

Under the bill, there would be a two-year moratorium on licensing additional cultivators beyond those that are already operating for the medical cannabis market.

No single entity would be allowed to possess more than one business license, but people could invest in multiple companies.

Miller previously said that negotiators had reached an agreement to place the temporary moratorium on approving additional cannabis cultivator licenses. Some have protested adding cultivators beyond the existing medical marijuana licensees because they say there’s already a sufficient supply to meet demand in the adult-use market.

It’s unclear whether, or to what extent, the governor’s office was involved in the drafting of this bill, but legislative leaders have made clear that they view this measure as a starting point that will likely continue to be revised as the session goes on.

Regulators would also be responsible for setting limits on “cannabis product serving sizes, doses, and potency, including, but not limited to, regulations which provide requirements for reasonable tetrahydrocannabinol (THC) potency limits for each type of cannabis product sold by a licensee and reasonable potency or dosing limits for cannabis concentrates and edible products, that shall apply for adult use cannabis only,” according to the text of the bill.

Ruggerio has said he feels that the legalization bill that has already been approved in the Senate contained “very strong social justice provisions” and the its expedited expungements provisions are “as close to automatic as practical.”

He also said in July that he’s not disappointed the House hasn’t advanced legalization legislation yet and that “what we really wanted to do was send it over and have them take a look at it” when his chamber passed its cannabis reform measure.

A coalition of 10 civil rights and drug policy reform advocacy groups—including the Rhode Island chapters of the ACLU and NAACP—had demanded that lawmakers move ahead with enacting marijuana reform in the state before the end of 2021. But that did not pan out.

Lawmakers have noted that neighboring states like Connecticut and Massachusetts have enacted legalization, and that adds impetus for the legislature to pursue reform in the state.

Shekarchi, meanwhile, said in July that he doesn’t intend to let regional pressure dictate the timeline for when Rhode Island enacts a policy change. Social equity, licensing fees, labor agreements and home grow provisions are among the outstanding matters that need to be addressed, the speaker said.

In June, the House Finance Committee held a hearing on an earlier legalization measure that Slater introduced.

The governor previously told reporters that while he backs legalization it is “not like one of my highest priorities,” adding that “we’re not in a race with Connecticut or Massachusetts on this issue.”

“I think we need to get it right,” he said, pointing to ongoing discussions with the House and Senate.

The House Finance Committee discussed the governor’s proposal to end prohibition at an earlier hearing last April.

Both the governor and the leaders’ legalization plans are notably different than the proposal that former Gov. Gina Raimondo (D) had included in her budget in 2020. Prior to leaving office to join the Biden administration as commerce secretary, she called for legalization through a state-run model.

McKee gave initial insights into his perspective on the reform last January, saying that “it’s time that [legalization] happens” and that he’s “more leaning towards an entrepreneurial strategy there to let that roll that way.”

Shekarchi, meanwhile, has said he’s “absolutely” open to the idea of cannabis legalization and also leans toward privatization.

In late 2020, the Senate Finance Committee began preliminary consideration of legalization in preparation for the 2021 session, with lawmakers generally accepting the reform as an inevitability. “I certainly do think we’ll act on the issue, whether it’s more private or more state,” Sen. Ryan Pearson (D), who now serves as the panel’s chairman, said at the time.

Meanwhile, the governor in July signed a historic bill to allow safe consumption sites where people could use illicit drugs under medical supervision and receive resources to enter treatment. Harm reduction advocates say this would prevent overdose deaths and help de-stigmatize substance misuse. Rhode Island is the first state to allow the facilities.

The Senate Judiciary Committee also held a hearing last year on legislation that would end criminal penalties for possessing small amounts of drugs and replace them with a $100 fine.

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Photo courtesy of Mike Latimer.