Some Pennsylvania lawmakers seek to move marijuana legalization, criminal justice reforms
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Some Pennsylvania lawmakers seek to move marijuana legalization, criminal justice reforms

Multiple proposals to legalize marijuana for adult use started circulating in the Pennsylvania legislature after Republican State Sen. Mike Regan announced he has changed his position on the issue.

Multiple proposals to legalize marijuana for adult use started circulating in the Pennsylvania legislature after Republican State Sen. Mike Regan announced he has changed his position on the issue and now plans to introduce a marijuana legalization proposal.

As a former agent of federal law enforcement, Regan claims that he saw first-hand how the drug war has consumed law enforcement resources and clogged the court system at the expense of pursuing other, more dangerous criminal activity. In an op-ed for Pennsylvania newspapers earlier this month, Regan stated:

“Our law enforcement agencies and justice system do not have the manpower or time to handle these minor marijuana offenses that clog our courts and produce little return. Instead, police and prosecutors need to focus on protecting our residents from the violent criminals and large-scale drug importers that are also dealing in heroin and fentanyl, which kill thousands of Pennsylvanians each year.”

Although Regan has not yet formally introduced language for his marijuana legalization proposal, he says he intends to incorporate an important provision that has been atypical of many legalization efforts: protecting a legal marijuana user’s right to purchase and own legal firearms

Because marijuana is a Schedule I substance under the federal controlled substances act, the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives restricts a user’s ability to lawfully possess a firearm, although no such similar restrictions exist against users of alcohol or other legal intoxicating substances.  As Helen Sudhoff points out in a new Reason Foundation policy brief on marijuana users’ second amendment rights:

“Federal law unconstitutionally prohibits medical marijuana users from purchasing or possessing a firearm. The Gun Control Act impinges on the Second Amendment by imposing a blanket prohibition for marijuana users, contrary to longstanding historic practices, and in turn substantially burdens the core right of self-defense. Further, the Act’s requirement for individuals to self-disclose their status as unlawful users violates the Fifth Amendment privilege against self-incrimination.”

The Pennsylvania state police website echoes this ban, although the state Health Department has offered some protection to medical marijuana cardholders in the state by shielding their identities from law enforcement.  Many Americans would like to exercise their constitutional freedom to responsible firearm possession while also gaining the freedom to consume a plant that may hold medical benefits for them.

Regan also points out that two of Pennsylvania’s immediate neighbors, New Jersey and New York, are now in the process of implementing legal, adult-use marijuana markets.  He correctly anticipates significant cross-border traffic in marijuana at the retail level as consumers could easily drive to these nearby places to purchase legal marijuana if Pennsylvania does not create its own legal adult-use market.  As Regan says, “It is important to recognize that legalization of adult-use marijuana in Pennsylvania is inevitable.”

Other aspects of Regan’s proposal appear to be standard, with two exceptions. First, he would dedicate the bulk of marijuana excise tax revenues to law enforcement and highway infrastructure. Regan cites an estimate that Pennsylvania could generate $1 billion annually from these excise taxes. That estimate is inordinately high and falls in line with what California, where there is a much larger market, believed it would generate from marijuana excise taxes.  In reality, due to a variety of flaws with its system, California wound up receiving about one-third of that total tax revenue in its first few years of operation. Bureaucratic red tape and high taxes have caused the state to struggle with transitioning formerly unregulated marijuana producers into the regulated adult-use market and the black market is still thriving in the state.  Estimates of possible tax revenues from legal marijuana are notoriously inaccurate due to data limitations and a general failure to anticipate consumers’ reactions to the pricing disparity that high tax rates create between the legal market and black-market alternatives.

Second, while Regan says he would like to “remove penalties for use and possession by adults,” he says nothing about expunging the criminal records of individuals who have already been prosecuted for engaging in the same actions that would become legal.  Justice is applied unequally when some individuals continue to serve time or carry the black mark of a criminal conviction for actions that other individuals now engage in freely.  Those records can preclude people from gaining employment, applying for business loans, attending college, and can thus lead to recidivism.

A version of those expungement provisions is expected to be included in a separate legalization bill sponsored by State Reps. Jake Wheatley and Dan Frankel, both Democrats from Allegheny. And Gov. Tom Wolf, a Democrat, called for marijuana legalization and said he intends to sign a legalization bill so long as it contains restorative justice provisions. 

“This year, I again went to the General Assembly and asked them to make legalizing adult-use cannabis a priority for the fall as we work to find ways to overcome the economic hardships of the COVID-19 pandemic,” Gov. Wolf said. “To date, there has been no movement to advance legislation. So, I’m here today to ask again, and to focus on two particular benefits of legalization – potential economic growth and much-needed restorative justice.”

Likewise, Attorney General Josh Shapiro said:

“It’s time for Pennsylvania to join our neighbors, and legalize marijuana. But let me be clear: We must simultaneously expunge the records of those serving time for nonviolent marijuana convictions—and that is non-negotiable.”

A third, bipartisan marijuana bill has been announced in the State Senate, sponsored by State Sens. Sharif Street (D-Philadelphia) and Dan Laughlin (R-Erie).  Unfortunately, although a few Republican senators have now signaled some support for one proposal or another, Republican House Majority Leader Kerry Benninghoff, who controls the lower chamber’s agenda, recently said he doesn’t view marijuana legalization as a priority.

In all likelihood, state lawmakers will need to cobble together language from the various proposals that they can agree on and place it into a single legalization bill in order to try to secure the support from Republicans, who control both chambers of the state legislature, that will be needed for passage.  State Sen. Regan told WHTM he will work to persuade Republicans:

“If you had a vote in the Senate tomorrow, would it pass” Daybreak co-anchor Ali Lanyon asked.

“I think it would,” Regan responded, saying that he believes many of his Republican counterparts are in favor of the idea behind closed doors. He plans to hold a series of hearings over the next few months before formally introducing the legislation in December.

“It’s my job to go around the build consensus among the members,” he said.

As part of the policymaking process, lawmakers should strive to ensure Pennsylvania allows for a free and open market for producers and consumers alike, expunge criminal records to help undo the past harms of the failed drug war, and avoid the cronyism and corruption that has plagued other states.