While many states -- including Virginia's neighbors -- have taken steps toward more sensible drug policy, Virginia remains steadfastly committed to the failed war on drugs. Marijuana remains illegal for both recreational and medicinal purposes; misdemeanor possession can be punished by up to a year in jail, possession with the intent to distribute even relatively small quantities is a felony, possession of any quantity of marijuana distillate (e.g. oil, wax, most edibles) can be charged as a felony, and distribution of the same carries a potential sentence of 5 to 40 years in prison. While the federal sentencing guidelines have been revamped to address overly punitive sentences for the possession or distribution of harder drugs, Virginia maintains an inflexible scheme of mandatory minimums, which when combined with liberal rules on "stacking" charges, can lead to egregious sentencing disparities.
Although law enforcement in Virginia has ample resources for its drug interdiction efforts, alternatives to incarceration such as diversion, drug courts and drug treatment are woefully underfunded, and in many cases unavailable.
One of the main reasons marijuana prohibition is so unjust is the manner in which it allows police to infringe on civil liberties, namely the right to be free from unlawful searches and seizures. As it stands, the mere odor of marijuana provides police officers in Virginia probable cause to stop an individual, search him, search his car, or even search his house. Moreover, when a police officer claims to have stopped and searched someone based on the odor of marijuana, that stop and search are nearly immune from judicial review -- once a smell has dissipated, it’s gone. There’s no way for lawyers or judges to return to the scene of a search which was based on the odor of marijuana and determine if the officer was telling the truth, and if he was, whether he was able to narrow down the source of the smell to the person searched. Combined with the growing popularity of the drug, the smell of marijuana has given police officers broad authority to stop and search individuals, authority that is often abused or exercised unevenly.
The statistics don’t lie -- even though white people and people of color use marijuana at the same rates, black and Hispanic people in particular are far more likely to be stopped, searched and arrested for marijuana possession. Until there are limits placed on the use of the odor of marijuana in developing probable cause, the racial and economic inequities will persist.