Marijuana Legalization Doesn't Mean Immediate Release for Virginia Inmates

Starting on July 1, Virginia residents will have the ability to possess small amounts of cannabis and use it in their homes. But that doesn’t mean those already in jail on similar charges will get a quick release.

The complicated process of expunging past criminal records and releasing current inmates incarcerated on marijuana possession charges could take as long as a year or more. That’s a disappointment to those who spearheaded the Virginia legalization effort.

“It makes no sense to me,” state Sen. Louise Lucas, who co-sponsored the legislation that led to legalization in Virginia, told the Virginia Mercury. “That was urgent to me, because now we’re going to be in a situation where you’ve got people still sitting in jail for the very thing that we’ve already legalized.”

An effort to speed up the process got removed from the legalization bill.

The Virginia Legislature voted to make adult-use marijuana legal in the state in April. Lucas and other supporters attempted to include language that would have granted resentencing hearings to people in jail on certain marijuana-related charges, such as possession. But other lawmakers would not approve those provisions.

Retail cannabis sales will not start in Virginia until 2024. But starting July 1, residents can possess up to one ounce of cannabis and grow up to four plants per household.

For inmates, the only recourse will involve filing a petition with the court to seek a rehearing. There’s no guarantee the rehearing will happen. The decision to release someone also will be the decision of the judge, according to NBC 29 in Charlottesville.

Albemarle County Commonwealth’s Attorney Jim Hingeley told NBC, “once July 1 comes around, to somebody who’s in jail, they’re entitled to petition and to go ahead and have a court review their sentence and possibly release them.”

Virginia is not the only state trying to tackle this issue.

When California voters approved legal recreational marijuana in November 2016, part of the new law expunged the records of those convicted in the past for lesser marijuana charges. But the task proved so enormous that coders volunteered to help the city of San Francisco clear more than 9,000 cases.

Expungement is an issue in Alabama, as well, where lawmakers recently passed a law allowing those who have a low-level crime conviction in their past, including marijuana possession, to get the record expunged. However, it will still require the decision of a judge and perhaps having to hire an attorney.

How to deal with past marijuana convictions — and those currently in jail on minor marijuana charges — will continue to be an issue because social justice has been one of the key reasons legalization has won support from many people.

State Sen. Linda Coleman-Madison, who sponsored the bill in Alabama, said it’s an issue of fairness. “It’s going to give people a second chance. That’s all people are asking for. They’ve served their time. They’ve learned their lesson, and they are not going back there,” she said.

But exactly how that will work fairly is an issue that local and state leaders still must figure out in some states.