House passes bill to legalize marijuana

Senate action expected soon
May 5, 2022

Rep. Ed Osienski’s latest attempt to legalize marijuana paid off May 5, as the House of Representatives approved his measure 26-14.

House Bill 371 allows adults to have up to an ounce of marijuana without penalty. It only needed a simple majority in the House to pass, and easily secured that vote. The final vote even exceeded by one the 25 votes needed for a three-fifths majority that previous bills failed to attain. Those bills needed a three-fifths majority vote because legalization was tied in with industry regulation that included new fees. House Bill 372, which regulates a marijuana industry in Delaware, will need a three-fifths majority vote in order to pass when it is heard in the House.

Osienski, a Newark-area Democrat, thanked everyone who has supported the bills over the years.

"Delaware is more than capable of successfully enacting policies for safe and legal cannabis. I'm grateful to the House for passing this bill and look forward to continuing this effort until Delaware is poised to establish a new, legal industry in our state," he said.

In March, after failing to gain passage of a comprehensive bill that would’ve regulated a marijuana industry and legalized the drug in Delaware, Osienski split the bill into two – one to legalize possession by adults and another to regulate a marijuana industry. The decision to break out the marijuana legalization bill as a standalone bill so far has proven successful. 

The legalization bill removes all penalties for possession of 1 ounce or less of marijuana for adults, but penalties remain for those who are under 21 years of age. Additionally, possession of more than 1 ounce of marijuana by anyone and public consumption remain unclassified misdemeanors. The bill also removes language referencing search and seizure authority, and adds a provision to the Uniform Controlled Substances Act that provides that there will be no criminal or civil penalty for transfers of 1 ounce or less of marijuana between persons who are 21 years of age or older without remuneration. The Democrat majority in the Senate will most likely secure a favorable vote for HB 371 as it awaits action in the Senate Judiciary Committee.

Gov. John Carney has previously said he does not approve of legalization, but it is unclear whether he would veto the bill or allow it to become law by not signing it. Emily David, spokeswoman for the governor, only said his position has not changed.

Sussex County representatives were the only ones to speak out against the bill.

Both Rep. Steve Smyk, R-Milton, and Rep. Ruth Briggs King, R-Georgetown, said they believe the federal government should address the fact that marijuana remains a schedule 1 drug before the states take action. A schedule 1 category is a federal designation for drugs the government says have no accepted medical use and a high potential for abuse. Nearly all states allow marijuana use for medical reasons.

“The real issue needs to come at the federal level to try and correct this, because now we’re going to have all these different laws and different standards from state to state, and I feel we’re going to have people who might innocently get trapped in a situation that maybe we don’t want them to,” said Briggs King. “What are the unintended consequences of that?”

Smyk questioned approving a bill that legalizes marijuana when the only way to buy it in Delaware is illegally, unless someone has a marijuana medical card. “We still don’t have the means of offering that amount legally to the public,” he said. “Illegal marijuana is absolutely a profit from organized crime.”

Briggs King also questioned whether anyone would know how much an ounce of marijuana is so they do not get in trouble with the law.

“If somebody was going to give me a joint, how many joints can I possess and be under an ounce?” she asked, prompting a candid response from Osienski.

“They come in different sizes. It depends if they are skinny or large,” he said, getting a few laughs from the floor. “I think it makes a big difference.”

All Sussex County representatives voted against the bill, including Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth, only one of two Democrats who voted against the bill. One upstate Democrat was absent for the vote.

Schwartzkopf, a former Delaware State Police officer, has said he is opposed to legalized marijuana since the bill was first put forth in 2018. He voted against the bill in 2021, and also the bill that was defeated in March.

After the vote was recorded, Schwartzkopf added some levity after an upstate representative asked whether some Democrats were late to the vote because some samples were made available. “I could tell you, but I’d have to kill you,” Schwartzkopf quipped. “Right about now, I’m not eating any brownies in here.”



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