Skip to main content

Some Observations About How Vermont Just Legalized Recreational Marijuana

Posted by on Wednesday, January 24, 2018 in News, Updates.

On January 22, 2018, Vermont became the ninth state (and the tenth comparable jurisdiction, if we include D.C.) to legalize recreational marijuana. Vermont’s 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 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.

Sec. 7. 18 V.S.A. § 4230e.

The new law makes possession of larger quantities—up 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. § 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. at § 4230b. Possession of even larger quantities—by minors or adults—remain criminal offenses under Vermont law. Id. at § 4230a.

Like other states, Vermont also imposes several limits on the use of marijuana. For example, it bans consumption in a “Public place,” which the statute defines as “any 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.” Section 7. 18 V.S.A. § 4230e. The book discusses similar bans on public use on pages 133-141.

I think the Vermont law is noteworthy for at least four reasons:

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’t have a ballot initiative process. But the fact Vermont’s 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.

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; Vitiello’s 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).

Second, the Vermont measure doesn’t authorize the commercial 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—what I call the “personal supply” model in Chapter 8.

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, 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, Vermont Governor Phil Scott had expressed “reservations about a commercial system which depends on profit motive and market-driven demand for its growth.”

But relying exclusively on personal supply also has downsides. For one thing, Vermont won’t generate any taxes from a marijuana market (those personal grow operations are not taxed). This makes the passage of Vermont’s 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.

Third, the Vermont measure doesn’t address one obvious issue surrounding personal 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 “distribution” under the law. And there is caselaw from Vermont (page 316) that appears to reject the notion that an individual must have a “commercial purpose” to be convicted of the crime of distribution under Vermont law. So it appears that Vermonters really will (each) have to grow their own.

Fourth, Vermont’s legislation contains some interesting—and as far as I can tell, unique—provisions designed to protect minors from marijuana. (It’s possible that other states have similar measures—perhaps in statutes that apply to all drugs—and I’m just not aware of them.)

Among other things, Vermont makes it a crime not only to “furnish” marijuana to a minor (many states make this a crime), but also to “knowingly enable the consumption of marijuana” by a minor. Section 9. 18 VSA § 4230g(a). The law defines “enable the consumption of marijuana” to mean “creating a direct and immediate opportunity for a person to consume marijuana.” Id. at 4230(b). This provision could have some far-reaching applications. However, the offense doesn’t apply to another minor or to a medical marijuana dispensary that lawfully supplies marijuana to a minor. Id. at (e)(2).

The statute also provides for a civil cause of action against anyone who furnishes marijuana to a minor. The relevant provision states:

(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.
. . .
(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.

Sec. 10. 18 V.S.A. § 4230h.

That’s it for now. Time to update all of the charts from the book!

Tags: , , , , , , , , , , , , , , , , , , ,


  • Douglas Hiatt

    January 25th, 2018

    Hey Prof, I gave you a shout out years ago at norml or dpa and you said hi I didn’t know you were there. Id like to chat n catch up if can. I’ve continued to litigate and was responsible for kynaston which became McIntosh at 9th, and some other cases. Anyway, waiting on NJ case as I’m sure you are too. Lemme know 206 816 9645. Congrats on book.d