If Ohio voters pass Issue 2 legalizing recreational marijuana, carrying a small bag of weed would no longer be illegal. But people facing minor marijuana possession charges will still be prosecuted.
“Anybody who is charged with simple possession with their own personal use is still violating the current law,” said Michael Benza, professor of practice at Case Western Reserve University School of Law. “The way our system is set up is that the law that is applicable is the law that’s in effect the day of your offense.”
While Issue 2 won’t immediately help those currently facing charges, it tries to address inequities through a program that, when issuing business licenses, will prioritize people affected by marijuana enforcement.
Taxes for social equity program intended to address injustices
Issue 2 would require the Ohio Department of Development to establish a social equity and jobs program.
Recreational marijuana sales would be taxed at a rate of 10%. A little more than a third of the revenue would go toward the equity program.
The initiative would help those most affected by the enforcement of marijuana-related laws by giving them preference when issuing licenses to sell and grow marijuana. Some people may not qualify.
If Issue 2 passes, the state’s Department of Development will decide what criminal offenses disqualify a person from participating.
The state decided people with misdemeanor marijuana offenses can get business or cultivation licenses to participate in Ohio’s medical marijuana program, which has been legal since 2016.
The tax money set aside from Issue 2 would also help offset application fees and licensing fees to increase diversity within the industry, said Tom Haren, spokesperson for the Coalition to Regulate Marijuana Like Alcohol, which got the measure on the ballot.
Some of the funds would also go toward criminal justice reform.
That would include studying and funding issues such as bail reform and directly investing in programs that help Black and brown communities that marijuana laws have disproportionately impacted, Haren said.
“That to me is really one of the more exciting components of our social equity program,” he said. “Because we’re investing back into these communities that have been ravaged by marijuana prohibition.”
Haren said the equity program, paired with other efforts, like expungement and record-sealing, would help make “meaningful progress” on social equity since the law won’t work retroactively.
Government leaders could seek expungement, grant clemency
Benza, the Case Western professor, said the question of what happens to people who break the law before something is legalized comes up often. Making a law retroactive would require the government to go back and find all the people previously charged and find a way to provide relief for them.
Government leaders still have the ability to deliver a remedy. A governor can give clemency to people impacted, either reducing their sentence or pardoning them, Benza said.
Or – as Cleveland Mayor Justin Bibb is attempting to do – government leaders can request to expunge and seal low-level convictions.
In April 2022, Bibb, along with Chief Prosecutor Aqueelah Jordan and Council President Blaine Griffin, attempted to expunge more than 4,000 marijuana conviction records. That plan didn’t work out, because state law said people have to file for their own expungement requests.
Senate Bill 288, which Gov. Mike DeWine signed into law in January, allows prosecutors to request that records be sealed or expunged. That opened the door for Bibb to try again to expunge low-level marijuana convictions.
Cleveland decriminalization law doesn’t conflict with Issue 2
In Cleveland, theoretically, no one should be facing fines or jail time for simple marijuana possession.
In 2020, Cleveland City Council passed legislation essentially decriminalizing marijuana possession. While recreational marijuana is still illegal statewide, the city legislation got rid of fines and jail time for misdemeanor marijuana possession charges of up to about 7 ounces – far more than the 2.5-ounce limit in Issue 2.
But it hasn’t worked perfectly.
In 2022, the Cuyahoga County Prosecutor’s Office found 455 people had been “mistakenly charged since City Council passed the ordinance in January of 2020,” according to a news release from the City of Cleveland.
Most of those cases have been dismissed, according to Press Secretary Marie Zickefoose. But some people entered plea changes. Their cases are part of the larger group of cases Bibb is working to get sealed.
Passage of Issue 2 won’t interfere with Cleveland’s decriminalization law, said Jonathan Witmer-Rich, a criminal law professor at Cleveland State University. People in Cleveland would still be able to carry more than the state legal limit and not face penalties or jail time if they get caught.
Signal Cleveland asked the city if it would change its decriminalization law if recreational marijuana is legalized. Zickefoose said the city’s law department “has not yet formulated an opinion regarding this issue.”
Addressing inequities
Council President Griffin said he sees the two laws as separate. Cleveland’s decriminalization law wasn’t specific to the use or sale of recreational marijuana. It simply lowered the penalties for people who were caught with weed.
Griffin said he supports Issue 2 and has always believed marijuana should be regulated just like alcohol.
“I thought it was inequitable when Black folks … or people of color were eight times more likely than their white counterparts to catch a charge,” Griffin said.
If voters approve Issue 2, he said he hopes to see women and people of color benefitting from the industry the measure will create.
