After quasi-decriminalization, North Dakota activists relaunch legalization bid

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North Dakota’s decision to drop penalties for possession of personal quantities of cannabis to an infraction won little media attention back in May. And activists in the state, who pushed for last year’s defeated legalization initiative, say most of what coverage there was got it wrong. 

The few headlines — for instance, in VoxUS News & World Report, the public policy website Governing, and even the usually authoritative Marijuana Moment — said that North Dakota had “decriminalized” cannabis. But David Stewart Owen, chair of Legalize ND, tells Cannabis Now that isn’t quite accurate. He attributes this inaccuracy to an idiosyncrasy of state law.

“It’s not true decrim,” Owen says. “Under decrim, you no longer bear the burden of a criminal record for nonlegal activity. We got it from a Class B misdemeanor with a $1,000 fine and 30 days in jail to an infraction with a fine of $1,000 maximum (realistically, $500). But it’s still on your criminal record.” That’s because under North Dakota law, an infraction is a criminal offense, even if it doesn’t carry a jail term. 

Owen traces the confusion to widespread ignorance about North Dakota’s uncharacteristic law, and to a misunderstanding of the announcement about the new measure from the National Organization for the Reform of Marijuana Laws.

“NORML tagged it ‘decriminalization,’ and everyone went with the tag, not the text,” he says. “They posted it in the decrim category because they don’t have one for ‘weird-*ss infraction law.'”

The actual (and accurate) NORML headline was, “North Dakota: Governor Signs Law Reducing Marijuana Possession Penalties.”

“We call it a reduction in penalty, or ‘baby decrim,'” Owen says wryly. “We also call it a step in the right direction.” 

Owen, a University of North Dakota major in political science and molecular biology, says he took great pains to clear up the confusion. “I did a media tour across the state to get the correct information out. I spent 16 hours on the road, doing TV and radio appearances in Fargo, Bismarck, Minot and Grand Forks in a 24-hour period.” But few national outlets revisited the story.

“The national media doesn’t care about North Dakota,” Owen says flatly. 

What Really Happened

The limited legislative victory came after GOP House Majority Caucus Leader Shannon Roers Jones of Fargo emerged as an ally in the statehouse in Bismarck. This happened as Legalize ND was mulling its next move after the defeat of Measure 3, the legalization initiative that was on the ballot in November. 

“At end of the Measure 3 campaign, she said she would not support legalization but would support decrim,” Owen relates. “We worked together to craft a decrim bill.”

That is, an actual decrim bill that would have imposed a civil fine of $500 for under an ounce or up to five plants. 

The decrim measure failed on the House floor in February, and was re-introduced as a rider to another bill. But when it went to the joint committee to reconcile House and Senate versions, the penalty was jacked up to an infraction. That’s the version that was passed and then signed into law (with no fanfare) by Gov. Doug Burgum on May 8. The bill had passed with a veto-proof majority, so even if Burgum had failed to sign, it still would have automatically taken effect.

“We wanted true decrim with plant grow, while the opposition wanted to raise the penalty — which the bill does for over a pound,” Owen says.

Instead, up to a half ounce is now an infraction and the criminal penalties for cultivation of any quantity remain unchanged. Seizure of cannabis by police was permitted under both versions.  

Pardons, But Not Expungement

Further progress came on July 10, when a second bill was passed that puts in place a pardon system for low-level marijuana offenders if they’ve stayed on the good side of the law for five years. This is also a compromise measure, answering the growing demands for expungement of cannabis convictions without actually expunging.

The conviction will remain on the record (should a prospective employer or landlord choose to check) but it will now say “pardoned by governor.”

Even to get this compromise measure passed was an “uphill fight and a half,” Owen says. Measure 3 would have mandated true expungement.

Still, it is a significant victory and some 170,000 North Dakotans will be eligible for pardon. By Owen’s math, that’s one in every four adults in the state. 

2020 Initiative Effort 

Legalize ND still, of course, has its eyes set on legalization, and a new initiative is in the works that activists hope will be on next year’s ballot. The text has been drafted and is currently being reviewed by legislative counsel, made available by a sympathetic state senator who Owen preferred not to name. 

Under state law, the text must be officially approved by a sponsorship committee. In this case, that committee includes a city commissioner from Fargo, John Strand; the former chair of state Libertarian Party, Steve Potter; and a prominent hemp farmer, as well as Legalize ND founder, Eric Olson. Once the text is approved by the sponsorship committee, it will be submitted to the office of the Secretary of State in Bismarck to be approved for signature circulation. Then, activists will have until July 2020 to collect 13,452 signatures — 2% of the state population. If that happens, it will go before the voters in the general election in November. 

If passed, possession of up to two ounces would be legal 30 days after that; dispensaries would be phased in over time. There would be no provision for home cultivation, which Owen says is “opposed by a significant plurality.” He cites that as a reason for the failure of Measure 3, which actually would have allowed unlimited cultivation.

A separate initiative, which would actually change the state constitution to legalize cannabis (rather than doing it by statute, as the Legalize ND effort would), was submitted to the secretary of state on July 12.

Either effort will certainly face stiff opposition. Attorney General Wayne Stenehjem donated his own money to the campaign against Measure 3, and also opposed the successful Measure 5, which legalized medical marijuana in the state in 2016. Yet by the figures of his own office, three in every 10 adults in the state have a criminal record for cannabis. 

“This is destroying the next generation of North Dakotans,” Owen says. “A criminal conviction means no student loans, so that means no college, and good luck finding housing.”

Odds for work are also diminished. Major employers won’t take you if you have a criminal record, according to Owen — and it remains to be seen if this will change once the pardons are granted.  

According to Owen, the good news is that there’s growing bipartisan support for change, a particularly critical factor in a deep red state like North Dakota.

“Cannabis not seen as a Democrat-Republican issue,” Owen says. “I get along with Republicans.” 

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