Pot decriminalized Friday; is legalization next?

Being caught with a small amount of marijuana in Delaware will, in most circumstances, no longer come with threats of prison time, hefty fines or a criminal record.

A new law decriminalizing the possession and personal use of up to an ounce of marijuana goes into effect at 12:01 a.m. Friday – exactly six months after Gov. Jack Markell signed the legislation.

"There will be some confusion because people may think marijuana is legal now, and that is not the case," said New Castle County Police chief Elmer Setting. "Hopefully, they read and understand the law."

The law says possession or private use of a small amount of marijuana will no longer be punishable by a fine of up to $1,150 and six months in jail. Instead, the penalty will be a $100 civil fine – which can be paid like a traffic ticket.

People under 18 or those caught using marijuana in public will still face criminal sanctions, and the drug can still be confiscated by police.

Marijuana advocates in the First State are cheering decriminalization, saying it is the first step toward the loftier goal of legalization.

"We commend the fearless leaders who pushed that bill through," said Zoe Patchell, a pro-marijuana activist and lobbyist. "We're very glad that some arrests will end. However, it doesn't end cannabis prohibition and it doesn't end the many collateral consequences associated with cannabis prohibition."

However, some law enforcement and opponents are concerned the decriminalization law could be misunderstood and send youth a message that marijuana is acceptable.

"Advocates will say otherwise, but it is absolutely a gateway drug," said state Sen. Colin Bonini, R-Dover. "I'm especially concerned about the message we are sending young people."

Is legalization next?

Legalization is unlikely in Delaware in 2016 because, even though Markell signed into law the decriminalization bill, he has publicly stated that he will not sign legislation for legalization.

Rep. Helene Keeley, D-Wilmington, who introduced the decriminalization legislation, said she thinks there needs to be more research done on the impact in states that have legalized marijuana.

Only four states – Alaska, Colorado, Oregon and Washington – and Washington, D.C., have legalized marijuana. Delaware is the 20th state to decriminalize it.

Public opinion in recent years has turned slightly in favor of less stringent marijuana laws.

A Pew Research survey found that 53 percent of Americans say the drug should be made legal – as opposed to 1969 when just 12 percent favored legalization.

Likewise, about 69 percent of Americans believe alcohol is more harmful to a person's health than marijuana, and 49 percent of Americans say they have tried marijuana, studies show.

Marijuana activists say even though Markell won't sign legislation, they hope the next governor will do so.

"Our governor has gone on the record to say he wouldn't legalize marijuana on his watch," said Cynthia Ferguson, executive director of Delaware NORML, the pro-marijuana advocacy group. "But he is done in 2016. It will be a good year to have conversations so we can start out 2017 with strong legalization legislation."

The three candidates for governor have voiced varying opinions on the issue.

Congressman John Carney, D-Delaware, who appears to be the front runner in the race, said he is supportive of the state's new decriminalization law, but believes the state should wait to see how the law plays out before considering legalization.

His Republican challengers – Lacey Lafferty, a retired Delaware State Police officer, and Bonini – both said they could support legalization, but only if certain conditions were met.

Bonini, who expressed strong opposition to the decriminalization bill, said he would support legalization if it was strictly-regulated and taxed for adults.

"It would have to be much stricter than most people would want," he said. "If I was comfortable with the level of oversight, I might support it."

Lafferty said she would first create an exploratory committee or task force to investigate other states that have passed marijuana laws.​

"This is not a simple legislative bill that should be just slammed through our Legislature," Lafferty said. "Careful thought and consideration need to be present with facts and figures from other states that have experienced what legalizing marijuana will do to their communities."

Patchell, who launched the group Cannabis Bureau of Delaware to call for marijuana legalization, said she will continue to press lawmakers to go further.

"Our group is looking to tax and regulate cannabis like alcohol," Patchell said. "We have a $100 million budget deficit here in Delaware and serious criminal justice issues. So we're basically hoping that Delaware legislators stop diverting police manpower and resources to a victimless issue."

Midnight deadline looms

While legalization may be far off, officials have been working through the more pressing issue of addressing the intricacies of the decriminalization law.

In anticipation of the midnight deadline for the new law, State Prosecutor Kathleen Jennings and Chief Magistrate Alan G. Davis issued guidelines to police chiefs and judges.

There will still be a learning curve, according to law enforcement.

"Each patrol is being educated on the new laws so they know what is legal or what is not," Setting said. "The public also has to be educated."

Fred Calhoun, president of the Delaware Fraternal Order of Police, said there is still work that needs to be done in order to see what the impact of the marijuana decriminalization will be, especially on searches and seizures of drugs.

"There are a lot of areas that this decriminalization has the potential to touch," he said. "It may not have any negative impact, but it may."

Patchell said the rules in the decriminalization law have proved confusing and could still lead some to end up with a criminal charge.

The law says marijuana use is not allowed in areas accessible to the public, including sidewalks, streets, alleys, parking lots, parks, playgrounds, stores, restaurants and any other areas to which the general public is invited.

Locations within 10 feet of such areas, and locations within 10 feet of entrances, exits, windows that open or ventilation intakes of public or private buildings are also off limits.

"We have some serious concerns with that, especially with city dwellings and low income residences," Patchell said. "I definitely think people are confused as to what exactly is decriminalized. We've had a ton of questions about what people can and can't do, what they can and can't possess, what they will be arrested for. It's hard to give them those answers."

All said more education for the public is needed. In the meantime, some will be celebrating Friday.

Delaware NORML will be hosting a decriminalization party at Buzz Ware Village Center in Arden for those over 21.

"It's not all about smoking pot," Ferguson said. "It's about celebrating the fact that it is decriminalized."

Jonathan Starkey contributed to this story.

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @jessicamasulli.