Signed by the Governor: Delaware Laws Expand Marijuana Program Despite Federal Prohibition

DOVER, Del. (Sept. 5, 2018) – Last week, Deleware Gov. John Carney signed a bill expanding the state’s medical marijuana program and a bill creating a process to expunge the sentences of people charged under the state’s marijuana laws prior to decriminalization. These two laws take further steps toward nullifying federal marijuana prohibition in effect in Delaware.

Rep. Peter Schwartzkopf (D-Rehoboth Beach) sponsored House Bill 374 (HB374). The the new law adds glaucoma, chronic debilitating migraines, pediatric autism spectrum disorder, and pediatric sensory processing disorder to the list of qualifying conditions for medical marijuana in the state.

The Senate passed HB374 by a 19-0 vote and the House approved the measure by a 41-0 vote. With Gov. Carney’s signature on Aug 28, the new law went into immediate effect.

Sen. Gregory Lavelle (R-Sharpley) sponsored Senate Bill 197 (SB197). The new law provides mandatory expungement eligibility to individuals who were convicted of misdemeanor possession, use or consumption of marijuana prior to Delaware’s decriminalization of these offenses. To be eligible for the mandatory expungement, the marijuana conviction must be the applicant’s only criminal conviction, and it does not apply to charges that were reduced from more serious felony offenses.

On July 1, the House passed SB197 by a 40-0 vote. The Senate previously approved the measure by a 20-0 vote. With Gov. John Carney’s signature on Aug. 29, the new law went into immediate effect.

Delaware decriminalized marijuana in 2015. In the past, there has been some opposition to marijuana legalization bills because laws generally leave those previously charged and convicted unprotected. The passage of SB197 demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Once the door is open, the way is cleared for additional steps. You can’t take the second step before you take the first.

Enactment of SB197 will not only help those with prior marijuana arrests and convictions on their record get a new start, it will also further undermine federal marijuana prohibition. As marijuana becomes more accepted and more states simply ignore the feds, the federal government is less able to enforce its unconstitutional laws.


However, all of this is prohibited under the 1970 federal Controlled Substances Act (CSA). Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Deleware legalized medical marijuana in 2011 before decriminalizing cannabis in 2015. These acts removed two layers of laws prohibiting the possession and use of marijuana, but federal prohibition remains on the books.

FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law.  By legalizing marijuana in some situations, Delaware essentially swept away some of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


Passage of these bills ignores federal prohibition and start the process of nullifying it in practice in the state. Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In January, Vermont became the first state to legalize marijuana through a legislative act.

With 32 states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.

The move to expand medical marijuana laws and expunge criminal records in Deleware demonstrates another important reality. Once a state puts laws in place legalizing marijuana, it tends to eventually expand. SB197 and HB374 are perfect examples of this tendency. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.


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