Jonathan Starkey

The News Journal

Delaware is one of a dozen states being targeted for reform by the Marijuana Policy Project

The group predicts that full legalization %u2013 taxing and regulating sales of the drug %u2013 is possible by 2017.

More than 160 Delawareans now carry state IDs that allow them to smoke the drug to treat a variety of illnesses.

The marijuana reform movement has reached Delaware.

Lawmakers will consider the intermediate step of decriminalization next year following the legalization of pot in Oregon, Alaska and Washington D.C.

Legislation drafted by Rep. Helene Keeley, D-Wilmington, would replace criminal penalties for possession of small amounts of marijuana, with fines similar to those for speeding or running a red light.

And national pot activists are hoping Delaware won't stop there.

It is one of a dozen states being targeted for reform by the Marijuana Policy Project, where officials predict that full legalization – taxing and regulating sales of the drug – is possible by 2017.

The group, optimistic after a September University of Delaware survey showed 56 percent of Delaware residents support legalization, has hired a lobbyist and plans to mobilize supporters to contact Delaware lawmakers early next year.

Meanwhile, Delaware's first medical marijuana dispensary will open in April after a four-year-long delay that has left patients in pot purgatory.

Mark Lally, president of the First State Compassion Center, which will operate the dispensary, says construction at 37 Germay Drive south of Wilmington is ongoing.

"We're just trying to make sure we provide the best medicine to our patients with safe access," Lally said last week.

More than 160 Delawareans now carry state IDs that allow them to smoke the drug to treat a variety of illnesses, without having any legal means of purchasing it. They pay $125 in annual fees to the state for the privilege.

Legally purchasing marijuana will remove anxiety from Delawareans who buy pot on the street to relieve pain.

"I'm not getting the full therapeutic extent of my medication because I need to have an unnecessary anxiety placed on me in order to get my medication," said David Turner, 39, a cardholder since July who uses medical marijuana to treat symptoms of Fibromyalgia and a traumatic brain injury.

Fines for possessing small amounts of marijuana could start at $250 under the proposed decriminalization law.

The question for marijuana advocates in Delaware: Is smoking a little pot all that bad? Cynthia Ferguson said all adults in Delaware should have the choice to smoke pot.

"I should be able to come home from work and relax. I don't like beer and I don't like wine," said Ferguson, executive director of Delaware NORML, the advocacy group.

Keeley confirmed last week that she plans to introduce her legislation in January. It would decriminalize the possession of small amounts of the drug, an ounce or less.

"There was a point in time alcohol was illegal," Keeley said. "You wouldn't arrest somebody for carrying a six pack of beer."

Legalization is gaining traction in other states, yet is still opposed by Democratic Gov. Jack Markell, who says Delaware should wait and watch the impact of legalization in Colorado, Washington and other states now legalizing sales.

Keeley said she is not backing full taxation and regulation because Markell has indicated he would veto such a measure.

Voters in Oregon, Alaska and Washington D.C. voted to legalize pot in November. All three came by way of ballot measure.

Delaware law does not allow similar ballot measures, so marijuana laws would have to be changed by the General Assembly.

"We think marijuana should be treated like alcohol. It should be available to adults," said Robert Capecchi, deputy director of state policies at the Marijuana Policy Project in Washington.

"I think it's important to have a really good tax-and-regulate conversation. I think that conversation is going to get started this year. I don't think that conversation will finish this year. In the meantime, we think it's vital to stop arresting people and charging criminal penalties for possessing something that's safer than alcohol."

Yet some of the most pro-marijuana arguments don't offer clear-cut cases for legalization or decriminalization in Delaware.

Financially, legalization wouldn't exactly solve the state's budget problems.

NerdWallet, a personal finance site, estimates that all states combined would see $3.1 billion with legalization and taxation. Delaware's share? Just $6 million.

To generate the estimates, NerdWallet used federal survey data of pot smokers in each state and assumed that each would replicate Colorado's 15 percent excise tax on legal marijuana sales.

And then there's the question about leaving people with a criminal record for marijuana possession convictions.

According to reliable data, most Delawareans who face marijuana possession charges are not left with a criminal record and very few people here, if anyone, spend time in jail for possessing the drug.

In 2013, 2,334 adults faced unclassified misdemeanor charges for the possession of marijuana. The charge carries up to three months in prison and fines. Add an aggravating factor and penalties are stricter, with up to six months in jail and up to $1,150 in fines.

Eight percent of defendants were found guilty of the original charge. About 70 percent of defendants had charges dismissed or entered a drug diversion program.

Nine were sentenced to jail time for marijuana possession and all of those cases involved other charges, including shoplifting, aggravated menacing and weapons charges.

Thomas MacLeish, former State Police superintendent and director of the statistical analysis center at the state's Criminal Justice Council, penned a June 18 memo to state prosecutor Kathy Jennings. "Jail sentences for marijuana possession were relatively rare, and they occurred only in cases involving more serious offenses," he wrote.

None of that is of any consolation to Jason, a 22-year-old Delaware State University senior who was arrested on Memorial Day for possessing 1.1 grams of marijuana, a small amount of the drug by any standard. A similar decriminalization measure introduced last year by Keeley would have removed criminal penalties for up to 28 grams.

Here's his arrest story: Jason was the passenger in a car that was pulled over in Seaford on Memorial Day. The officer claimed to smell marijuana – Jason said he wasn't smoking – and searched the car. Jason says he took the fall for his friend, was handcuffed and taken to the station for booking.

"I called my parents and spent half of the day in the police station," said Jason, who is job hunting and asked The News Journal to omit his last name for fear that revealing his identity and marijuana charge would affect his ability to find work.

Jason hired pro-legalization Dover lawyer Tom Donovan, who handles possession cases for free, and his possession charge was dismissed, leaving him without a criminal charge on his record.

But not before two months of stress, a court hearing, and a $200 fine. Jason still worries – perhaps irrationally, he admits – that the marijuana charge will come back to bite him while seeking a job.

"I cross my fingers and hope not," he said.

Capecchi, of the Marijuana Policy Project, said it's absurd to expend those types of resources – law enforcement and court time – for something as minor as marijuana, especially if cases are dismissed.

"That's time that can be spent on the beat, patrolling the neighborhood, talking to members of the community," Capecchi said.

He added: "If anybody ends up with a record for something as miniscule as possessing marijuana, that's too many. The idea that no one spends a day in jail for possession is an argument to change the law."

There's also evidence that Delaware does a bad job representing defendants for minor crimes like marijuana possession.

A study published earlier this year found that Delaware's public defender's office does a good job representing indigent defendants facing felony charges but fails to provide adequate representation for misdemeanor offenses.

The 200-page report, prepared by the nonprofit Sixth Amendment Center and commissioned by Delaware Public Defender Brendan O'Neill, said inadequate defense could leave the state vulnerable to civil lawsuits and saddle defendants with unnecessary, lifelong criminal records.

The report noted excessive caseloads, sometimes three times national standards, leave public defenders "with insufficient time to properly work on all their cases."

Zoe Patchell, a 33-year-old Middletown resident, said the answer is clear: Legalize sales of marijuana. Get it out of the criminal justice system altogether, she says.

"Cannabis is a safer healthier recreational alternative to alcohol," said Patchell, one of Delaware's leading legalization activists and an early supporter of Delaware NORML.

Ferguson, executive director of NORML in Delaware, said she joined the legalize movement after a nephew lost his license because of a marijuana possession arrest.

Now she's an unlikely leader of activists here. Ferguson, 54, is a longtime recreational smoker. She's also an administrator in the code enforcement section of Wilmington city government, overseeing a vacant property program. Others involved in the effort are no different, she said.

"We're professional people," Ferguson said.

Patchell plans to lobby the Legislature next year on decriminalization. She isn't paid. And she often dips into her own pocket to pay bills for advocacy efforts.

Earlier this month, Patchell, who works as an administrative assistant, fronted money to print signs for a marijuana march in Wilmington, where more than 40 supporters paraded along King Street with pro-legalization signs, causing drivers to enthusiastically honk their horns in approval.

Patchell is straightforward about her affinity for weed.

"I'm a responsible cannabis consumer," Patchell said. "I don't consume cannabis and drive. I don't consume cannabis in inappropriate settings or times. I do believe it's a lot safer than alcohol and people should have the freedom to choose."

There is evidence supporting her claims.

According to Mayo Clinic-sponsored research published in February 2012, marijuana is far less addictive than alcohol, heroin, cocaine or nicotine, with lifetime dependence reported in just 9 percent of users. Nicotine dependence registered at 32 percent, with alcohol clocking in at 15 percent.

About 88,000 deaths are caused each year by excessive drinking, the Centers for Disease Control and Prevention estimate. Similar statistics for marijuana – a drug that's been illegal for decades – are more difficult to come by.

Marijuana does have its opponents here. Police groups are expected to oppose decriminalization in Legislative Hall.

"Many people still see marijuana as a gateway drug," said Tom Brackin, president of the Delaware State Troopers Association, the union that represents more than 700 sworn officers in the Delaware State Police.

"I haven't seen that question answered to my satisfaction. That's a concern for most law enforcement officers, because we're the ones who have to go out and deal with the heroin problem."

Brackin also wonders how decriminalization will be enforced. Will police be charged with tracking incidents of possession. What will be their responsibility when they come across the drug? What about repeat offenders?

"What are we expected to do when we encounter it? How do we track it? If you're not going to keep a criminal record, what kind of record are we going to keep on these people?" Brackin asked.

For medical marijuana patients like Turner, the idea that marijuana is as harmful as alcohol, or opioid painkillers, such as OxyContin or Vicodin, is illogical.

Turner admits to abusing prescription painkillers before turning to medical marijuana, saying pot has helped him deal with pain, reduce anxiety and return to a sense of normalcy.

"It allows me to relax," Turner said, adding it helps with his "ability to function. This isn't for me about going out and getting high."

Contact Jonathan Starkey at (302) 983-6756, on Twitter @jwstarkey or at jstarkey@delawareonline.com.