Maryland, a bit behind its neighbors D.C. and Virginia, is finally taking on the question of legalizing recreational marijuana this fall.

When Marylanders head to the polls (or drop-boxes) in November, they will be asked to approve or reject legislation allowing adults 21 and over to possess, use, or grow small amounts of marijuana. If passed, the referendum would open the door to the creation of a taxed and regulated recreational marijuana industry in the state. (Medical marijuana has been around for eight years in Maryland).

Legalization of marijuana enjoys support across voters and lawmakers, but some state leaders say the measure set to go into effect if approved by voters leaves a number of issues unresolved, especially when it comes to ensuring communities most harmed by marijuana’s criminalization can benefit from its legalization. The bill, which if approved would legalize possession and allow for expunged records, provides a framework for setting up a recreation marijuana industry. It would require further action from lawmakers to tackle important details, like how the new industry would be regulated and taxed, and how the state will issue licenses for growing and selling in a way that ensures racial equity.

Here’s what you need to know about how Maryland got a ballot referendum at all, and where the future of weed could go in the state.

What exactly are voters deciding?

On the ballot, Marylanders will be asked to say yes or no on Question 4, or the “Marijuana Legalization Amendment.” If approved, the measure would authorize individuals at least 21 year of age to use and possess marijuana, and allow the state’s legislature to pass laws establishing distribution, regulation, and taxation parameters.

In April of this year, state lawmakers passed two separate bills paving the way for future marijuana legalization. House bill 837 would allow anyone over the age of 21 to possess up to 1.5 ounces of marijuana, with anything between 1.5 and 2.5 ounces subject to a civil fine of $250 and anything above 2.5 ounces subject to a charge of possession with an intent to distribute. The bill is set to go into effect in July 2023. The second bill, House Bill 1, established that the question of legalization would be put to voters via a referendum on the November ballot.

If passed, Maryland residents would also be allowed to grow up to two marijuana plants in their own homes or on their property, so long as they are kept out of public view. For those convicted on charges related to possession of a small amount of marijuana, the law would allow them to seek an expungement of their records or petition for immediate release if they are being held or jailed on those charges.

But what the bill does not do is establish the nitty-gritty regulatory details needed to get the recreational weed industry off the ground. Lawmakers will need to return in the next session (and potentially several after that) and introduce new measures to further build out a framework for the budding industry. Before they get started on that work, the current legislation mandates several studies and reports be conducted, including the creation of a cannabis business assistance fund, a study to examine the public health impacts of marijuana use, and an equity study to help the state ensure that minority- and women-owned cannabis businesses aren’t shut out of the industry.

Why is this a referendum, not a ballot initiative? 

You may be familiar with ballot initiatives. (In D.C., Initiative 71 is the ballot initiative that legalized possession, use, and home cultivation of a limited amount of marijuana in 2014.) An initiative allows a regular citizen (or group of citizens) to propose a measure and put the question directly to voters after successfully gaining the required number of petition signatures.

A referendum, on the other hand, gives voters the chance to either approve or reject legislation already voted on and passed by lawmakers. In this instance, voters are deciding whether the House’s legalization bill should go into effect.

How likely is it the referendum will pass? 

Most recent polling points to very likely. A March 2022 Goucher poll found that 62% of residents – including about half of Republicans – supported legalizing recreational marijuana, with just 34% opposed.

Still, advocates aren’t taking anything for granted. Ex-NFL player Eugene Monroe is heading a statewide campaign urging voters to “Vote Yes On 4,” backed with money from Trulieve, a large multi-state cannabis company.

If it passes – when will this go into effect? 

Not until next year. Initially, possession of small amounts of cannabis would become a civil rather than a criminal offense starting January 1, 2023, punishable by a $100 fine for up to 1.5 ounces, or $250 for more than 1.5 ounces and up to 2.5 ounces. Full legalization for up to 1.5 ounces wouldn’t kick in for another six months, on July 1 of next year– a point of consternation for some advocates, who would’ve liked the state to act more quickly. But for lawmakers who support the bill, that time is needed to iron out regulatory measures before full legalization.

Medical marijuana hit some bumps in its rollout…how is that impacting the recreational weed legislation? 

Medical marijuana was legalized in Maryland back in 2014, but amid bureaucratic barriers and administrative red-tape, it took lawmakers years to get the industry up and running. And when it finally did in 2017, not a single Black-owned business landed one of the limited licenses in a state where Black residents make up nearly a third of the population.

With the full legalization vote, lawmakers are trying to avoid making the same mistakes, and that has meant a lot of debate over how to ensure there is equity in the rollout.

“We need to make sure that we build a brand new industry where people can get in where it is most appropriate for them, and that they have a support system around them so that they can thrive,” said Del. Jazz Lewis, a representative from Prince George’s County who voted, albeit reluctantly, in favor of the legalization bill earlier this year.

When the first 15 medical marijuana growing licenses were issued by the new Maryland Medical Cannabis Commission (MMCC) in 2016, none went to Black-owned growers, and lawmakers have been struggling to narrow the racial equity gap ever since. In 2018, the General Assembly passed another law requiring the MMCC to issue seven growing and 13 new processing licenses using an application that takes race into account. Despite these measures, the state hasn’t fully closed those wide gaps created years ago.

“It was a concerted effort among the Legislative Black Caucus to push and get more licenses, so that we can rectify that [gap], which took years and…we’re still not where we need to be on our pathway to doing that,” Lewis said.

Now a nearly $600 million boon for the state’s economy, the legal medical cannabis industry as it stands today is still dealing with its founding equity issues. In Baltimore for example, none of the city’s 10 dispensaries are majority Black-owned. Across the state, fewer than 43 percent of the 92 dispensaries in the state are owned by people of color.

“The Maryland General Assembly unfortunately got it wrong on medical cannabis,” said Del. Gabriel Acevero, who represents part of Montgomery County. “It did not prioritize equity, it did not ensure that – in an industry that now generates millions – that communities most impacted would be able to participate in that.”

How are equity issues impacting the legalization debate?

These issues hung over lawmakers as they debated full legalization – and for some, made them wary of what is currently a limited bill that leaves much to be hammered out. Big questions remained, like how the state’s already existing medical marijuana industry will operate alongside a new recreational business. And how will the state develop a licensing process that centers equity?

When the General Assembly finally took up both bills this past spring, those outstanding questions, along with changes made to the originally drafted bills by Senate lawmakers, prompted some House Democrats in the General Assembly to vote down the bill. Others, who do support legalization, worried that the state was poised to repeat the same mistakes from the past several years if leaders took the referendum route.

Acevero voted in favor of holding a referendum on the matter, but voted against the current legislation that the referendum would trigger. Dissatisfied with the steps taken in the bill ultimately approved, he had introduced his own legalization bill, House Bill 1342, which made it to a committee in March but never to a vote. His legislation would go further than the current measure by mandating automatic expungement of records. Under the current bill, individuals would need to petition for expungement.

“What we see is the people languishing behind bars don’t look like the people who are profiting from the medical cannabis industry,” he said, adding that he plans to reintroduce his legalization effort in 2023.

State senator Jill Carter (D-Baltimore) also introduced her own legalization bill earlier this year, the Cannabis Legalization and Reparations for the War on Drugs Act, but the legislation never made it to a committee.

According to an American Civil Liberties Union study that assessed marijuana charges from 2010 to 2018, Black Maryland residents were 2.1 times more likely to be arrested for marijuana possession than white residents, despite national statistics suggesting that people of all races use marijuana at similar rates. In Prince George’s county, Black residents were 2.4 times more likely to be arrested on charges related to marijuana possession and in Montgomery County, 3.2 times.

“We’re not prioritizing mitigating the impacts of the racist drug war – we’re just moving on this issue because we recognize that it’s very popular with Marylanders and for some people, it’s politically expedient,” he said. “But we have to get this right.”

So say this passes…how do lawmakers plan to move forward? 

Lawmakers expect it to be a multi-year effort  before a robust recreational marijuana industry is fully built out, where residents can walk up to a dispensary and buy a joint.

That daunting task will fall to the House Cannabis Legalization Workgroup, which began meeting years ago and is chaired by Del. Luke Clippinger (D), who also authored the current legalization bill. If the referendum passes, state lawmakers will then need to draft separate bills creating a tax and licensing system – a process that could take until the 2025 legislative session. 

According to Del. C.T. Wilson (D), who chairs the business implementation subcommittee of the legalization workgroup, the coalition of lawmakers is focused on drafting a tax and licensing plan – one that would focus on distributing licenses equally and funneling a portion of the tax dollars into community funds.

“I myself, am very mindful of what can be done to ensure there’s minority participation and ensuring that it’s affordable,” said Wilson, who represents parts of Charles County.

Del. David Moon (D) who represents parts of Montgomery County, chairs the criminal justice impacts subcommittee of the legalization workgroup. He says that the group will largely wait until the referendum is passed and the equity studies are completed in early 2023 to begin setting up a licensing system, but it’s going to be a years-long process before the state is ready to start regulating a recreational medical marijuana business.

“That’s exactly why we’re on this sort of two step process,” says Moon. “This whole conversation about licensing requires a few more conversations and analysis, I think because of exactly the history [of the medical marijuana inequities.] The workgroup meetings that have happened have been about getting the basic conversations going on licensing and health effects, so I think it’s really a preview for what’s going to happen in next year’s legislative session.”

But if small amounts of recreational marijuana become legal on July 1 of next year, and a framework for selling and taxing the product isn’t developed for years to come, the state could be wading into a gray area, where an unregulated market could threaten existing medical marijuana businesses. The situation might look something like D.C., where possession of small amounts of the drug is decriminalized, but Congress blocks the city from legalizing the sale of marijuana for medical use.

Del. Lewis from Prince George’s County said that if the referendum passes, one of the first steps he would like to see is to make sure that the tax money generated from the recreational marijuana industry goes directly to communities disproportionately impacted by marijuana criminalization, like those formerly incarcerated. Lewis also suggested seed funding, which would help someone struggling to secure start up funding get into the cannabis market.

“We’re very concerned, we want to get it right when it comes to recreational cannabis,” Lewis said.

While he didn’t fully agree with the bill, he thought it was better to put the legalization question to voters as soon as possible, rather than kicking the decision down the road until a full regulatory framework was crafted.

“Delaying passing for an ideal perfect bill just allows for more adverse interactions with law enforcement,” he said.