Marijuana decriminalization efforts continue in Arkansas

Rep. Vivian Flowers (D-Pine Bluff) has expressed support for the proposals, Fults said, but recommended that the organization find a Republican to be the main sponsor. Republicans hold 78 of 100 seats in the Arkansas House of Representatives and 28 of 35 seats in the state senate.

“We are desperately trying to find a Republican,” Fults said. “I have a couple of them that are interested. I don’t know if they are going to have the guts to do it.”

Fults remains realistic about the chances of passing either proposal.

“With our ultra, ultra conservative legislature, it will probably end up having to be a ballot initiative,” Fults said in a telephone interview. “But we are talking to some legislators that are strongly considering a full legalization [bill] or a decrim [decriminalization bill].”

The group is using the language from the proposed 2020 ballot measure as a template for a bill that would fully legalize cannabis in Arkansas, Fults said.

The proposal for full legalization allows for Arkansas residents 21 years of age or older to possess up to 4 ounces of cannabis flower, 2 ounces of cannabis concentrate, edible products containing cannabis with THC content of 200mg or less and to cultivate up to six cannabis seedlings and six cannabis flowering plants. Cannabis would be sold at the state’s existing medical marijuana dispensaries as well as additional recreational marijuana dispensaries that would be licensed by the state.

The state could levy a sales tax of up to 10 percent on cannabis products, according to the proposal. Revenues would be used to support the state’s regulation of the cannabis industry with excess revenue going to fund pre-kindergarten programs and the University of Arkansas for Medical Sciences. 

Fults expects the legislature to make changes to those provisions if a bill were to reach the floor, she said. “The legislature is more interested in what they get out of it than what the people get out of it.”

The proposed decriminalization bill would not legalize marijuana but would lessen the penalties for those caught in possession of small amounts. Drafted by Little Rock lawyer John Wesley Hall, the proposal would treat low-level marijuana possession as a civil offense rather than a criminal offense, similar to a speeding violation for a driver. 

According to Arkansas law, possession of less than 4 ounces is a Class A misdemeanor punishable by up to a year of incarceration and a $2,500 fine on the first offense. Possession of 4 ounces to 10 pounds is a Class D felony on the first offense.

The decriminalization proposal would change state law so that possession of less than 2 ounces is subject to a civil penalty of up to $100 with no loss of driving privileges or other sanctions. Possession of less than 2 ounces of marijuana would not be cause for arrest. Possession of between 2-6 ounces would be a Class B misdemeanor. 

The proposal would also preempt cities and counties from further criminalizing possession of less than 2 ounces of marijuana possession. 

Although Hall worked on the decriminalization proposal, he said he believes Arkansas will eventually fully legalize marijuana.

“I think it’s inevitable Arkansas will get to recreational in six to eight years,” Hall said.

Arkansas would not be alone by taking either approach.

Fifteen states, Washington, D.C., and two U.S. territories have legalized marijuana. In these jurisdictions, there are no criminal or civil penalties for the personal possession of marijuana, according to NORML’s national Deputy Director Paul Armenato. Commercial activities such as cultivation, sales and trafficking are legally regulated and permitted with a license.

Twelve states have ended criminal penalties for marijuana possession, instead imposing civil fines, such as those imposed for speeding violations, Armenato said. A person found in possession of marijuana is issued a ticket but not arrested, and the accused only faces a judge if he chooses to fight the ticket in court.

Decriminalization has its roots in a report issued by the National Commission on Marihuana and Drug Abuse, according to NORML. Issued in 1972, the report recommended decriminalizing marijuana and changing the penalties for possession from criminal to civil.

“This is not a novel policy,” Armenato said. “This was recommended by a presidential commission 48 years ago. The irony is to have, almost five decades later, some parts of this country are finally considering it for the first time when much else of the country has moved on.”

Legalization and decriminalization efforts in other states have led to a national decline in marijuana arrests. Arkansas, on the other hand, saw a 50 percent increase in marijuana arrests between 2010 and 2020, according to a report from the American Civil Liberties Union.

Arkansas law enforcement agencies levied 10,616 charges for marijuana possession in 2019, with the state’s largest counties of Pulaski (1,621), Washington (1,100) and Benton (1,453) accounting for the highest numbers of charges, according to statistics from the Arkansas Crime Information Center.

The ACLU report found that marijuana laws are enforced in racially disparate ways even though studies show similar usage rates among racial groups. Black people in Arkansas were 2.4 times more likely to be arrested for marijuana possession than whites, according to the study. (Nationwide, the report found that Black people were 3.6 times more likely to be arrested for marijuana possession than whites.)

Although Arkansas ACLU Director Holly Dickson has not seen the Arkansas proposals and could not comment specifically, she did say that the ACLU supports significant changes to existing marijuana laws.

“The injustices of the failed ‘War on Drugs’ have fallen disproportionately on Black Arkansans and Arkansans with lower incomes,” Dickson said by email. “The ACLU of Arkansas supports full legalization of marijuana use and possession, and laws such as the federal MORE Act or Illinois’s reform bill that would review prior convictions, grant clemency and ameliorate harms caused by these convictions.”

The MORE Act is the federal Marijuana Opportunity Reinvestment and Expungement Act, which passed the U.S. House of Representatives in December but has not reached the Senate floor for a vote. The MORE Act would significantly change the federal government’s approach to marijuana, unscheduling marijuana as a Schedule I controlled substance and expunging some prior marijuana convictions. Neither of NORML’s proposals would expunge any records for Arkansans with previous convictions for marijuana possession.

Arkansas voters legalized medical marijuana when they passed Amendment 98 to the state Constitution in 2016. Since the first dispensaries opened in 2019, they have sold more than 33,000 pounds of medical marijuana, at a cost to the consumer of more than $219 million. Medical marijuana sales have generated $22.9 million in state tax revenue as of Jan. 19, according to Medical Marijuana Commission spokesman Scott Hardin. More than 66,000 people hold Arkansas patient cards, which require cardholders to have one or more of 17 qualifying conditions. Despite the rapid growth in the Arkansas medical marijuana market, Armenato says Arkansans shouldn’t expect that to lead to a reduction in the arrest rate.

Fults said she never intended to fight for full legalization but believes the state’s medical marijuana amendment did not go far enough in helping the state’s patients.

“I seriously never thought I’d fight for full legalization,” Fults said. “I really didn’t. That was never my goal. That was never on my radar. My radar was making sure patients had medicine.” 

From the National Organization for the Reform of Marijuana Laws:

LEGALIZED:

Alaska

Arizona

California

CNMI

Colorado

District of Columbia

Guam

Illinois

Maine

Massachusetts

Michigan

Montana

Nevada

New Jersey*

Oregon

South Dakota**

Vermont

Washington

* The New Jersey law takes effect on Jan. 1, 2021. New Jersey’s law requires the additional passage of enabling legislation from state lawmakers prior to implementation.

** South Dakota’s amendment takes effect on July 1, 2021.

DECRIMINALIZED:

Connecticut

Delaware

Hawaii

Maryland

Mississippi

Nebraska

New Hampshire

New Mexico

New York**

North Carolina**

North Dakota**

Ohio**

Rhode Island

Virginia

** These states have partially decriminalized certain marijuana possession offenses. Although the law still classifies marijuana possession offenses as criminal, the offenses do not carry any threat of jail time.