Summary
Question 4 on the Maryland ballot is a legislatively referred constitutional amendment that would legalize the use of marijuana for adults 21 years of age and older. It would add a new article—Article XX—to the Maryland Constitution stating this policy would take effect on July 1, 2023, and charge the General Assembly to pass laws governing the “use, distribution, possession, regulation, and taxation of cannabis.”
Fiscal Impact
Question 4 is not directly associated with any fiscal impact on state or local governments. It would simply establish a new constitutional right for adults to use marijuana. However, Maryland House Bill 837, which would become effective upon passage of Question 4, does have an estimated fiscal impact. The major effects include general fund allocations for the initial capitalization of two new special funds plus administrative costs to implement the automatic expungement of prior convictions. These total $46.5 million in the state’s 2023 fiscal year.
Separately, House Bill 837 would allow companies engaged in the cultivation, manufacture, or distribution of marijuana to claim business deductions for ordinary and necessary expenses that they are not currently eligible to claim. Legislative staff estimates this would reduce Maryland’s general fund revenues by $5.6 million in the 2023 fiscal year, although no licensees currently exist, nor does House Bill 837 even set forth a licensing process. Other data collection and studies required by the bill are estimated to cost $5.75 million in 2023.
At the same time, legalized marijuana sales seem likely to generate tax revenues of various sorts that could more than cover those costs.
Proponents’ Arguments For
The Yes on 4 campaign argues: “Legalizing cannabis would stimulate Maryland’s economy and create tens of thousands of good-paying jobs, while allowing Maryland residents to benefit from vital investments in education, public health, and public safety funded by cannabis taxes.”
In committee hearings, Marland Delegate Luke Clippinger (D) said his top priority in introducing House Bills 1 and 837 was to “address the overwhelming disparities that have impacted people of color, especially Black and brown people throughout Maryland.”
The bills would require an analysis of barriers faced by Black and brown people to establish a licensed marijuana business in order to provide for an equitable marketplace that would allow the participation of Black and brown entrepreneurs. House Bill 837 would also provide public support for the capital and operating expenses of minority-owned and women-owned marijuana businesses.
The legislation was also designed to address public health concerns by requiring the collection of data and completion of studies relating to “the patterns of use, incidents of impaired driving, prenatal health [and] hospitalizations.”
Opponents’ Arguments Against
There is no organized campaign against Question 4. In committee hearings, Delegate Brenda Thiam (R) expressed concern about the motivation behind the introduction of House Bills 1 and 837. She noted the sponsor’s argument that Black citizens are disproportionately impacted by the prohibition of marijuana through arrest rates and argued that Black Marylanders were “being used as a scapegoat to drive these very controversial conversations around cannabis.” She elaborated, “We’re being baited…that we’re going to expunge your record…You can become multi-millionaires…It’s just smoke and mirrors to entice us to buy into this.”
Delegate Susan McComas (R) argued in hearings that there appeared to be a rush to legalize marijuana prior to having knowledge of potential unintended consequences. She questioned whether the state should complete studies of the potential impacts on public health prior to making a substantial policy change.
Luke Niforatos of Smart Approaches to Marijuana (SAM), an anti-legalization advocacy group argued that the legalization of marijuana in California and Colorado has failed to drive away black-market actors and related crime.
Discussion
Medical marijuana is currently legal in Maryland and the possession of 10 grams, or less, of marijuana has been decriminalized. Question 4 would enshrine a very simple new constitutional right for Marylanders above the age of 21 to use marijuana if they choose. The way in which Marylanders could exercise this right is far less clear.
As a legislatively referred constitutional amendment, Question 4 began as House Bill 1 in the 2022 legislative session sponsored by State Delegate Clippinger. To proceed to the ballot, the bill was required to receive at least 60% support within each chamber of the legislature. The final version passed the Maryland State Senate by a vote of 30-15 (66.7%) and the House by a vote of 89-41 (68.5%).
The amendment itself would only guarantee a constitutional right to the use of marijuana for adults subject to future regulation by the General Assembly. However, the General Assembly also passed companion legislation during its 2022 session that would become effective upon passage of the amendment. House Bill 837, also sponsored by Delegate Clippinger, provides some additional clarity as to how the constitutional amendment would be implemented and so these provisions should be read in tandem.
House Bill 837 clarifies that, upon passage of Question 4, the possession of up to 1.5 ounces of marijuana or 10 grams of marijuana concentrate would immediately be decriminalized and subject only to small administrative fines. After June 30, 2023, possession of these amounts would become completely legal.
Citizens would also gain the right to cultivate up to two marijuana plants per household in a secure location at their residence. All prior convictions of marijuana possession that would be legal under these new provisions would be automatically expunged and the currently incarcerated would be able to apply for resentencing of possession convictions to time served. House Bill 837 also sets up a number of new state funds and requires certain studies, but it does not establish any commercial licensing system or regulatory framework to implement a marijuana market, nor does it impose any excise taxes on cannabis sales.
Although House Bill 837 provides some clarity, it fails to authorize any commercial system so that Marylanders could legally acquire marijuana products. This may subject Marylanders who attempt to satisfy market demand to raids or arrests and lead to inconsistent application of the law. The District of Columbia has also legalized the possession of marijuana without providing for a commercial system, and providers have been periodically raided by local police for illegally distributing marijuana that citizens are legally permitted to possess. Without enabling legislation in place to establish a commercial market, Marylanders risk a similar situation if Question 4 passes. This inconsistency has persisted for extended time periods in other states. After Nevada amended its constitution to protect citizens’ right to medical marijuana in 2000, it took 13 years before the legislature authorized a commercial system to satisfy this demand despite requirements for it to do so.
House Bill 837 does make positive strides by allowing for a limited amount of home cultivation, although other states permit as many as 12 plants to be cultivated at a residence. It also would enact intertemporal equity in the application of marijuana laws by automatically expunging convictions for actions that would become legal if Question 4 passes.
Despite failing to establish a commercial system or stipulating any excise tax rates for marijuana, House Bill 837 does begin to allocate money for certain programs. It would reserve 30% of all marijuana-related tax and fee revenue to a system of community improvement grants intended to offer job training and other services to communities disproportionately impacted by the drug war. It would also enshrine a Cannabis Public Health Advisory Council to produce data and provide initial recommendations on the advertising, labeling, and testing requirements for marijuana products that could eventually inform formal commercial regulations. Finally, it would create a Cannabis Business Assistance Fund and seed it with an appropriation from the state’s general fund to provide grants to small, minority-owned, and women-owned marijuana businesses. Eligible businesses could use these grants to finance capital and operating expenses, training, or license application fees. A potential concern is that this direct taxpayer funding of marijuana businesses could potentially implicate the state in federal aiding and abetting charges given that marijuana is still currently banned under the federal Controlled Substances Act and marijuana businesses are technically illegal at the federal level and can be considered criminal enterprises subject to racketeering laws. Further, if grant funding is indeed conditioned on gender or racial status, it may run afoul of the Equal Protection Clause under the 14th Amendment to the U.S. Constitution. Lawmakers should work to address these issues expeditiously should Question 4 pass in Novemeber 2022.
On the whole and, most importantly, however, Question 4 would effectively end the drug war in Maryland. Real-world data has shown that legalization has had no measurably strong effect on crime, road safety, or economic outcomes in the states that have legalized it. Marijuana use by high-school-aged young people has remained flat or fallen in states that have implemented legal, regulated adult-use marijuana markets.
While black market competitors remain prevalent in some states that have legal markets, this result is heavily tied to the impact that overly high taxes and regulations can have on making legal marijuana products more costly than similar cannabis products offered by illegal sellers. Survey data reveals consumers strongly prefer buying legal, tested marijuana products if the prices are close to those of black-market alternatives.