Marijuana arrests are down significantly in Virginia over the past few years — leading some to speculate that the decline could reflect a loosening attitude in the Old Dominion about the drug.
The number of people arrested or charged with marijuana offenses has fallen by 14 percent statewide over a two-year stretch — from 25,981 in 2013 to 22,428 in 2015, according to Virginia State Police figures compiled from local law enforcement agencies.
That’s the largest two-year drop in at least 15 years, with cannabis charges on pace to fall once again in 2016.
“And it ain’t because less people are smoking marijuana,” said Ron Smith, a veteran criminal defense attorney in Hampton. “Virginia changes the law very gradually, and you can feel it happening. Even if they don’t say, ‘Hey, it’s legal,’ you can see that slow pull, that slow walk toward legalization.”
Within a few years, he said, marijuana possession laws could go the way of adultery laws: Still on the books, but not enforced.
Newport News has seen a far steeper decline than most localities, helping to drive the statewide reduction. In 2011, 1,461 people were arrested or charged on marijuana offenses in the city. But that dropped to 578 people in 2015 — a 60 percent decrease.
Smith, for one, said he thinks police are being less aggressive these days on a variety of crimes, including marijuana offenses. “They’re picking the apples that they can reach, but they’re not standing on ladders,” he said. “I’m not saying they’re turning their heads, but they’re not doing anything to look past what’s right there in front of them.”
Drain on resources?
In one sign of the times, the top prosecutors in Hampton and Newport News decided in 2012 and 2013 to no longer prosecute adult misdemeanor pot possession cases, saying their resources were running thin for felony prosecutions.
“We were wasting resources when we’ve got bigger fish to fry,” said Hampton Commonwealth’s Attorney Anton Bell, who said he wanted to increase focus on homicides and gun crimes.
Newport News’ drop-off in marijuana arrests, in particular, appears to coincide with Newport News Commonwealth’s Attorney Howard Gwynn’s decision not to handle those cases. That left the prosecuting task to police officers — just as they handle their own traffic cases — before the cities filled the breach with alternatives.
“Certainly locally here in Newport News, the absence of a prosecuting attorney to help the officers with marijuana charges has had a significant and adverse impact on the officers’ ability to make those cases,” Newport News Police Chief Richard Myers said. “And we know with certainty that that has contributed significantly with each passing year to the decrease in our marijuana cases.”
When police officers find someone with marijuana on the street, Myers said, the extra burden of prosecuting the case “of course is going to factor into their decision-making” about whether to file pot charges or seek an alternative.
Gwynn did not return several phone calls for this story.
Myers, however, said his officers are not being told to “look the other way” on marijuana arrests.
“We haven’t done any stand-down kind of thing at all,” he said. “Some folks on the street probably think we have because the arrests have dropped. And I have heard officers say that because of it, some folks are getting a little more brazen about it.” But while the department places a priority on relationship building and “de-escalation,” he said, “nowhere does that say that we’re not making arrests, not writing tickets, that we’re not being proactive.”
After about a year of discussion with Gwynn’s office, the city of Newport News about a month ago agreed to pay for two new prosecutors to handle marijuana cases, at a cost of about $60,000 per attorney annually, City Manager Jim Bourey said.
Police officers began referring new pot cases to the prosecutor’s office under the new system just last week. “We really think it’s going to give the officers one more tool to kind of reel in any of that activity,” Myers said.
Perhaps in part because Hampton moved more quickly on this issue — hiring a lawyer with the city attorney’s office to take over marijuana prosecutions in early 2015 — the decline of pot arrests in Hampton has been more modest. Hampton Police Chief Terry Sult said there’s been no move to back off on enforcing marijuana laws.
“Absolutely not,” Sult said. “As a matter of fact, our mission statement is prevention and then it’s enforcement. And when we fail to prevent a crime, then we enforce the law, and I expect them to be professionally aggressive to enforce the law. … I do believe in the broken windows theory, and in my view, marijuana is a gateway drug to harder problems. A lot of our violent crime is associated with marijuana and marijuana distribution, and I do think it’s important that we enforce those laws — and we communicate that to our troops.”
Losing popularity
In a broader context, however, marijuana laws are clearly growing less popular across the country.
A Gallup poll released in October found that 60 percent of Americans now support legalizing marijuana, the highest in the 47-year history of Gallup’s question. Back in 1969, the support was 12 percent. It jumped to 28 percent in the 1980s, and has climbed steadily for the past 16 years, with a majority of Americans first supporting legalization in 2013.
On Election Day, voters in four states — California, Maine, Massachusetts and Nevada — passed ballot initiatives approving recreational marijuana, with only one state, Arizona, voting the other way.
Those four states joined four others — Colorado, Oregon, Washington and Alaska — and Washington, D.C., that have already done the same. That means that more than 20 percent of the nation now lives in places where pot use has been deemed legal. Meantime, 28 states now allow medical marijuana in some form or another.
In Virginia, however, both recreational and medical marijuana remain barred. But Gov. Terry McAuliffe has said he backs medical marijuana, and there are indications that enforcing pot laws is getting to be a lesser priority these days.
In 2013, the Virginia Department of Forensic Science told police agencies statewide that it would no longer routinely analyze “plant material” to determine if it’s marijuana, saying it would only do that with a court order from a judge. At the time, the agency said police officers could depend on the state-provided “field test kits” to analyze the substances.
But as part of a recent cost-cutting initiative, the Department of Forensic Science now says it will no longer provide those testing kits to police departments and sheriff’s offices. The local agencies now have to buy them on their own.
Linda Jackson, the agency’s director, said that wasn’t intended as a larger statement. “The goal certainly had nothing to do with legalization of marijuana, that I can say,” she said. “This was a straight up budgetary decision.”
Later, one of the state’s most powerful lawmakers, Senate Majority Leader Thomas K. “Tommy” Norment Jr., R-James City, said he would consider loosening pot laws.
“I think it’s absolutely crazy that we continue to lock people up for possession of a modest amount of marijuana,” Norment told the Norfolk City Council on Nov. 1, according to The Virginian-Pilot. “We are tough on crime. It’s a question of what crimes we want to be tough on.” Though he voted against a decriminalization bill last year, he added, “When I speak to millennials, they see things very differently than I do.”
On Nov. 30, Norment requested that the Virginia State Crime Commission study possible changes to criminal penalties “related to possession of small amounts of marijuana,” then report back with recommendations, a process that typically takes at least a year.
“He wants to look at the issue more comprehensively rather than piecemeal,” said Jeff Ryer, Norment’s spokesman. “The study would look at what everybody else is doing and what the possibilities are — what works, what doesn’t, and what the link is between the use of this and other problems.”
But Eric Olsen, the top prosecutor in Stafford and president of the Virginia Association of Commonwealth’s Attorneys, said that if marijuana were legalized, there would be many other ramifications — such as more people driving while high.
And because of the science involved, he says, it’s much more difficult to prove a “driving-while-high” case than a drunk driving one.
“Some of the most difficult cases that we deal with are somebody that has been injured or killed by someone who is drunk or high, or a combination of both,” Olsen said. “Somebody is going to church on a Sunday or coming home from their honeymoon … and a life is taken away with an entirely preventable act, which is that somebody has made a decision to drive while they are high or drunk, or both.”
On the other hand, Sen. Adam P. Ebbin, D-Alexandria, a proponent of decriminalizing Virginia’s marijuana laws, says 22,000 people charged criminally for marijuana laws in Virginia in one year is still far too many.
“It’s still out of control,” he said. “It’s not worth giving people a criminal record over this. … We have to eliminate these life-altering penalties.”
Ebbin said he disagrees that marijuana is a “gateway drug” leading to harder drugs and more serious crimes. “If it wasn’t an illegal substance, then it wouldn’t be as much of a problem,” he said. “The vast amount of people using marijuana are not involved in any other offenses, and we need to remember that.”
His near-term goal — decriminalization — would make pot possession a civil violation, more akin to a parking ticket with a fine. That would eliminate the possibility of jail time, and it wouldn’t show up on the criminal records of people applying for jobs.
In the meantime, he says, his goal in the upcoming legislative session is to remove a provision that a person’s driver’s license is suspended for first-time marijuana offenses.
“Not being able to drive for six months and other consequences are draconian compared to the offense,” he said.
Dujardin can be reached by phone at 757-247-4749.