In celebrating our Memorial Day holiday this weekend, my thoughts go out to the courageous Ukrainians, who are sacrificing so much to defend their freedom. In the meantime, this weeks’ letter will discuss the Rhode Island Cannabis Act.
1. Historical Context
The Governor signed the 125-page Rhode Island Cannabis Act on Wednesday, one day after the General Assembly enacted it after more than a decade of study. Senator Miller, the Act’s Senate sponsor, framed the Act in the historical context of Prohibition, which the 46 of 48 states voted to ratify in 1920. Only two states, namely Rhode Island and Connecticut, rejected ratification, but we were joined by 36 other states in 1933 to enact the Twenty-First Amendment repealing Prohibition.
Rhode Island enacted a medical marijuana law in 2006 and decriminalized marijuana possession in 2013. In the meantime, eighteen other states (including Massachusetts and Connecticut) have enacted programs to allow and regulate the sale and use of cannabis by adults for “recreational” purposes. As presented by Senator Miller, this national and regional context (in which Rhode Islanders can obtain marijuana from our two neighboring states), reduced substantially the deterrent effect of the prior, civil-penalty regime. Instead, the Rhode Island Cannabis Act will bring the benefit of above-board regulation of the cannabis market and provide resources to mitigate the negative impacts and address historical inequities.
2. Overview of the Act
The Act allows adults aged 21 and over to use cannabis and possess it in amounts up to one ounce (or its equivalent). It permits the licensing of up to 33 retail sellers, including nine existing compassion centers, with four licenses available in each of six geographic zones into which the State is divided. Cities and towns will have the opportunity to ban cannabis use by referendum on November’s ballot. The Act establishes a three-member Cannabis Control Commission to develop regulations and to issue these licenses. The Act imposes a 13% sales tax on cannabis sales on top of the State’s existing 7% sales tax, of which 3% will be distributed to the host community of the retailer. The Act creates a restricted receipt account to provide funding to mitigate some of the adverse impacts through drug awareness programs, substance abuse treatment and recovery support, public health monitoring and law enforcement training and technology improvements.
The Act addresses social inequities arising from the State’s prior criminal enforcement of simple marijuana possession, which had a disproportionate impact on the State’s already disadvantaged communities. The Act creates automatic expungement of prior convictions for the types of possession now permitted under the Act (but not for other more serious offenses, such as possession of larger amounts or drug dealing). The Act allocates one “social equity” license and one “cooperative license” in each of the six zones to support affected communities’ access to capital and other support to qualify for a retail sales license.
3. Objections and Concerns
In the testimony and debate preceding the Act’s passage, critics identified certain flaws. Law enforcement officers noted that we currently lack the technology to measure accurately a driver’s level of cannabis consumption that could be used to define the offense of “driving under the influence.” While the Act will provide funding to support technology to perform this role in the future, it will provide resources to law enforcement to enforce this law in the absence of such technology, through such tools as the “field sobriety test” that police used prior to the introduction of the breathalyzer. Despite this and other gaps, I decided to vote in favor of the Act based on my conclusion that it represents a significant improvement over the status quo, and that these flaws can be addressed in future legislation.
Common Cause stated concerns that the appointment of a Cannabis Control Commission member by the Governor from a list submitted by the House Speaker violates the State’s constitutional separation of powers. Common Cause pointed to case decisions from West Virginia and other states that have invalidated legislation on this basis. Legislative leadership maintains that Rhode Island’s separation of powers doctrine permits this form of appointment, noting existing examples in legislation establishing the I-195 Commission, the Judicial Nominating Commission and the Ethics Commission. The Governor agreed to sign the Act despite this issue.
I recommended to Senate leadership the value of obtaining an advisory opinion from the Supreme Court to clarify this issue. My own (informal and inexpert) speculation is that this Supreme Court (which includes two former legislators) would approve this type of mixed appointment process if asked, but in the absence of an advisory opinion, the matter could be litigated in the future by a citizen with standing (such as an unsuccessful applicant for a cannabis retail license). If the Court ruled against the State at that later time, the consequences could be more drastic, as it may overturn this program (or future programs with this type of mixed appointment process) in which much time, effort and reliance have been invested. While I do not prefer taking this type of risk, I decided to vote in favor of the Act because I believe it would ultimately survive this type of legal challenge.