Following legalization, Virginia legislators are considering post-conviction relief for marijuana offenses. Here’s what they need to know.
Sarah Wall, Government Affairs Region Manager, Northeast & Mid-Atlantic Region, R Street Institute
Informational Comments on House Bill 1348 – Writ of Post-Conviction Relief for Cannabis Offenses
February 3, 2022
House Committee for Courts of Justice
Chair Bell, Vice-Chair Adams and Honorable Members of the Committee,
My name is Sarah Wall and I am the government affairs manager for the Northeast and Mid-Atlantic regions at R Street Institute (R Street). R Street is a nonprofit, nonpartisan public policy research organization focused on advancing limited, effective government in many policy areas, including criminal justice reform. Our Criminal Justice & Civil Liberties team researches and offers public policy solutions to a variety of state and federal issues, including police reform, reentry and reducing the impacts of overcriminalization in past decades.
R Street would like to offer informational comments on the potential outcomes of HB 1348, which would create a hearing process for individuals previously convicted of marijuana offenses in which the judge considers modifying or vacating the conviction, specifically in light of the legalization of marijuana effective July 1, 2021.  By establishing reconsideration of the case with input from a defense attorney, prosecutor and a victim (if applicable), these policies balance the interest of justice and public safety against a limited government approach serving the interests of the Commonwealth’s new legal framework.
Applying a framework of limited government and fiscal conservativism to criminal justice reform could mean modifying sentences or vacating convictions for a host of minor offenses; arguably no category deserves this legislature’s scrutiny more so than offenses related to marijuana. That is chiefly because for the last decade, the context of marijuana legality and decriminalization has evolved substantially between different states and the federal government. California became the first state to legalize medical marijuana in 1996; since then, 36 states have legalized medical marijuana as well, and half have also legalized it for recreational use.  Virginia is one of the most recent to do so, joining the list of states legalizing recreational marijuana last year, whereas its neighbor, the District of Columbia, legalized it in 2014.  This patchwork of laws created an uncomfortable situation in which, for example, someone using marijuana legally in D.C. could have been fined or arrested if 5 miles away in Arlington.
Since July 2021, this dichotomy has no longer existed, but it left a lasting mark on the Commonwealth. In 2018, just three years before legalization, Virginia saw nearly 29,000 people arrested for marijuana offenses, triple the figure seen in 1999.  From 2018 to 2020, just over 1,000 people were charged with distribution of over half an ounce of marijuana, with half sentenced to jail and 17.5 percent sentenced to prison—many of which were for charges that are no longer illegal in Virginia. 
There are collateral consequences to these continued sentences and convictions, and they impact not only the individual charged but the public as a whole; thus, it is worth considering whether they serve the public’s best interest. For those who remain in prison for marijuana distribution, incarceration costs are increasingly high: from 2015 to 2019, the price of housing one inmate ballooned from just over $21,000 to nearly $32,000 per year.  In total, the Commonwealth spends $1.4 billion annually on its prison systems.  With such costs falling squarely on Virginia’s taxpayers, it is incumbent upon legislators to consider whether these resources are being allocated in fiscally reasonable ways that effectively improve public safety for all Virginians; public safety is often put at greater risk the longer individuals are incarcerated. One study shows that diverting low-level drug offenders to educational programs instead of incarceration reduces recidivism by 60 percent. 
For those who are not currently in prison or jail for marijuana offenses but who have convictions for marijuana-related offenses on their records, such convictions often become barriers that make successful reentry into the community more difficult. Opportunities to obtain higher education, better employment, or a new home can be forestalled or made more challenging with a guilty conviction on an individual’s record. That may be one reason that people who have been to prison are 10 times more likely to be homeless than members of the public at large, and that Black women returning from incarceration have a 43 percent unemployment rate.  Taken together, these collateral consequences make it more difficult for returning citizens to choose a productive path and avoid recidivism. The costs are especially high with marijuana convictions, since the same action taken today may not be considered an offense worth any conviction at all.
At least 24 states across the country have taken steps to modify sentences or vacate convictions for marijuana-related offenses, including states as diverse as Maryland, Colorado, Connecticut and Montana.  By establishing a hearing process for judges to consider the circumstances in light of the new legal framework in Virginia, the policy outlined in HB 1348 is a fiscally conservative, limited-government approach that would align Virginia with reform movements in other states. Thank you for your consideration.
Government Affairs Region Manager
R Street Institute
 Ned Oliver, “Marijuana will be legal in Virginia on July 1. Here’s what is and isn’t permitted under the new law,” The Virginia Mercury, April 7, 2021. https://www.virginiamercury.com/2021/04/07/marijuana-will-be-legal-in-virginia-on-july-1-heres-what-is-and-isnt-permitted-under-the-new-law.
 Jillian Snider and Diane M. Goldstein, “Republican Legislators Propose Marijuana Legalization at the Federal Level,” Real Clear Policy, Nov. 24, 2021. https://www.realclearpolicy.com/articles/2021/11/24/republican_legislators_propose_marijuana_legalization_at_the_federal_level_804997.html.
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 Ned Oliver, “Virginia legalized it, but people in prison on marijuana charges will stay there under new law,” Virginia Mercury, April 23, 2021. https://www.virginiamercury.com/2021/04/23/virginia-legalized-it-but-people-in-prison-on-marijuana-charges-will-stay-there-under-new-law.
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 “Tell Lawmakers to Give Rehabilitated People a Second Chance,” American Civil Liberties Union (ACLU) of Virginia, 2022. https://action.aclu.org/send-message/va-pass-second-look.
 Sara Jean Green, “LEAD program, aimed at helping instead of punishing addicts, to expand to Burien,” The Seattle Times, Sep. 12, 2018. https://www.seattletimes.com/seattle-news/law-justice/lead-program-aimed-at-helping-instead-of-punishing-addicts-to-expand-to-burien.
 Wanda Bertram, “Returning from prison and jail is hard during normal times — it’s even more difficult during COVID-19,” Prison Policy Initiative, Sep. 2, 2020. https://www.prisonpolicy.org/blog/2020/09/02/covidreentry.
 Restoration of Rights Project, “50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency,” Collateral Consequences Resource Center, January 2022. https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-marijuana-legalization-expungement.