{"id":352,"date":"2018-01-24T11:55:42","date_gmt":"2018-01-24T16:55:42","guid":{"rendered":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/?p=352"},"modified":"2018-01-25T08:48:24","modified_gmt":"2018-01-25T13:48:24","slug":"352","status":"publish","type":"post","link":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/2018\/01\/352\/","title":{"rendered":"Some Observations About How Vermont Just Legalized Recreational Marijuana"},"content":{"rendered":"

On January 22, 2018, Vermont became the ninth state (and the tenth comparable jurisdiction, if we include D.C.) to legalize recreational marijuana. Vermont\u2019s new law can be found here<\/a>.<\/p>\n

Vermont’s law is similar in many respects to other recreational marijuana measures. Most importantly, it declares that:<\/p>\n

\n

[A] person 21 years of age or older who possesses one ounce or less of marijuana . . . and two mature marijuana plants or fewer or four immature marijuana plants or fewer shall not be penalized or sanctioned in any manner by the State or any of its political subdivisions or denied any right or privilege under State law.<\/p>\n<\/blockquote>\n

Sec. 7. 18 V.S.A. \u00a7 4230e.<\/p>\n

The new law makes possession of larger quantities\u2014up to 2 ounces (or 3 mature \/ 6 immature plants) a civil offense punishable by a fine of up to $200. Section 4. 18 V.S.A. \u00a7 4230a. Possession of any amount up to 2 ounces (or 3 mature or 6 immature plants) by a minor is also a civil offense, though minors are subject to harsher civil penalties than those that apply to adults. Id.<\/em> at \u00a7 4230b. Possession of even larger quantities\u2014by minors or adults\u2014remain criminal offenses under Vermont law. Id.<\/em> at \u00a7 4230a.<\/p>\n

Like other states, Vermont also imposes several limits on the use of marijuana. For example, it bans consumption in a \u201cPublic place,\u201d which the statute defines as \u201cany street, alley, park, sidewalk, public building other than individual dwellings, any place of public accommodation . . ., and any place where the possession of a lighted tobacco product is prohibited.\u201d Section 7. 18 V.S.A. \u00a7 4230e. The book discusses similar bans on public use on pages 133-141.<\/p>\n

I think the Vermont law is noteworthy for at least four reasons:<\/p>\n

First, this is the first time that a state legislature has taken the lead in passing a recreational legalization measure. The other eight states (and D.C.) that have legalized recreational marijuana all did so via ballot initiatives. Of course, Vermont had to proceed through its General Assembly, because the state doesn\u2019t have a ballot initiative process. But the fact Vermont\u2019s legislature passed the legalization measure at all is still noteworthy. In the past, legislatures were skittish about addressing marijuana reforms, except when they had to (i.e., to implement an initiative passed by the people). That is part of the reason why reform proponents relied so extensively on the ballot initiative process. But because of the steadily-growing public support for legalization, legislatures may feel more comfortable passing reforms themselves.<\/p>\n

The shift from ballot initiatives to normal legislation may be a welcome move. As discussed in the book (pages 291-295), the ballot initiative process has some shortcomings compared to the legislative process. Among other things, initiatives approved by the voters may be less detailed and less coherent (on average) than statutes approved by state legislatures. In many states, it is also comparatively difficult to correct any errors or omissions in a ballot initiative. Think of the problems stemming from Proposition 215 (which Professor Mike Vitiello has written about here<\/a>; Vitiello\u2019s article is excerpted in the book on pages 291-292). That early measure had many gaps and peculiar provisions, spawning a multitude of legal disputes (discussed throughout the book) that California has taken many years to address (if it has done so at all).<\/p>\n

Second, the Vermont measure doesn\u2019t authorize the commercial<\/em> supply of marijuana. Until now, D.C. was the lone recreational marijuana jurisdiction not to have authorized commercial supply of recreational marijuana (and it declined to do so only because of its peculiar status vis a vis Congress). Instead, like D.C., Vermont allows users to grow their own\u2014what I call the \u201cpersonal supply\u201d model in Chapter 8.<\/p>\n

There are some advantages to the personal supply model. Perhaps most importantly, small grow operations are much less vulnerable to a federal government crackdown than are large commercial operations. (As I explain in the book on page 532, and in this earlier post here<\/a>, this is why states relied almost exclusively on personal supply in the early days of medical marijuana reforms.) Refusing to authorize commercial supply also addresses the concern that a commercial industry will push to expand undesirable uses of the drug (see page 512 of the book). Indeed, as reported in The Hill<\/a>, Vermont Governor Phil Scott had expressed \u201creservations about a commercial system which depends on profit motive and market-driven demand for its growth.\u201d<\/p>\n

But\u00a0relying exclusively on personal supply\u00a0also has downsides. For one thing, Vermont won\u2019t generate any taxes from a marijuana market (those personal grow operations are not taxed). This makes the passage of Vermont\u2019s legislation all the more remarkable, given that the generation of new tax revenues has been one of the biggest selling points for legalizing recreational marijuana. In addition, given their number and the fact they usually are located in private homes, personal grow operations are comparatively difficult to supervise and control. To be sure, Vermont imposes a number of limits on personal cultivation (e.g., no more than 2 mature or 3 immature plants). But the state will have a lot of difficulty enforcing those rules against individuals, just as the federal government would have difficulty enforcing its ban against them.<\/p>\n

Third, the Vermont measure doesn\u2019t address one obvious issue\u00a0surrounding\u00a0personal supply: Whether (or not) adults can share their marijuana with other adults. As discussed in the book (pages 315-326), even the social sharing of marijuana without remuneration is generally considered \u201cdistribution\u201d under the law. And there is caselaw from Vermont (page 316) that appears to reject the notion that an individual must have a \u201ccommercial purpose\u201d to be convicted of the crime of distribution under Vermont law. So it appears that Vermonters really will (each) have to grow their own.<\/p>\n

Fourth, Vermont\u2019s legislation contains some interesting\u2014and as far as I can tell, unique<\/em>\u2014provisions designed to protect minors from marijuana. (It\u2019s possible that other states have similar measures\u2014perhaps in statutes that apply to all drugs\u2014and I\u2019m just not aware of them.)<\/p>\n

Among other things, Vermont makes it a crime not only to \u201cfurnish\u201d marijuana to a minor (many states make this a crime), but also to \u201cknowingly enable the consumption of marijuana\u201d by a minor. Section 9. 18 VSA \u00a7 4230g(a). The law defines \u201cenable the consumption of marijuana\u201d to mean \u201ccreating a direct and immediate opportunity for a person to consume marijuana.\u201d Id. at 4230(b). This provision could have some far-reaching applications.\u00a0However, the offense doesn\u2019t apply to another minor or to a medical marijuana dispensary that lawfully supplies marijuana to a minor. Id. at (e)(2).<\/p>\n

The statute also provides for a civil cause of action against anyone who furnishes marijuana to a minor. The relevant provision states:<\/p>\n

\n

(a) A spouse, child, guardian, employer, or other person who is injured in person, property, or means of support by a person under 21 years of age who is impaired by marijuana, or in consequence of the impairment by marijuana of any person under 21 years of age, shall have a right of action in his or her own name, jointly or severally, against any person or persons who have caused in whole or in part such impairment by furnishing marijuana to a person under 21 years of age.
\n. . .
\n(f) A person who knowingly furnishes marijuana to a person under 21 years of age may be held liable under this section if the social host knew, or a reasonable person in the same circumstances would have known, that the person who received the marijuana was under 21 years of age.<\/p>\n<\/blockquote>\n

Sec. 10. 18 V.S.A. \u00a7 4230h.<\/p>\n

That\u2019s it for now. Time to update all of the charts from the book!<\/p>\n","protected":false},"excerpt":{"rendered":"

On January 22, 2018, Vermont became the ninth state (and the tenth comparable jurisdiction, if we include D.C.) to legalize recreational marijuana. Vermont\u2019s new law can be found here. Vermont’s law is similar in many respects to other recreational marijuana measures. Most importantly, it declares that: [A] person 21 years of age or older who…<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[213,6,209,222,220,219,218,221,212,211,15,5,217,214,208,223,224,216,215,210],"class_list":["post-352","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-adult","tag-cannabis","tag-commercial","tag-cultivate","tag-dc","tag-district-of-columbia","tag-general-assembly","tag-grow","tag-legalization","tag-legalize","tag-marihuana","tag-marijuana","tag-medical","tag-minor","tag-personal","tag-possess","tag-possession","tag-recreation","tag-recreational","tag-supply"],"_links":{"self":[{"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/352","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=352"}],"version-history":[{"count":4,"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/352\/revisions"}],"predecessor-version":[{"id":356,"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/352\/revisions\/356"}],"wp:attachment":[{"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=352"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=352"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.dev.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=352"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}