Drug Reforms on the 2020 Ballot


By Drug Enforcement and Policy Center Staff  |  Autumn 2020

white and bright green graphic with empty and check marked boxes and scarlet text that reads Drug Reforms on the 2020 Ballot

A closer look at drug policy reform decisions voters will make during the 2020 election

On election day 2020, voters will decide more than the next United States President. Drug policy and enforcement reforms will appear on numerous state-level ballots. Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market. And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.

To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020. Read on for a list of initiatives we will be watching this November in the areas of marijuana legalization, psychedelics, and criminal justice.

Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.


white and bright green graphic with empty and check marked boxes and scarlet text that reads Marijuana

Marijuana

Marijuana is legal for adult recreational use in 11 states and Washington D.C., and legal for medical use in 33 states. The 2020 ballot results could see both of these numbers rise. Voters will decide on recreational marijuana in Arizona, Montana, and New Jersey. Mississippians will choose between two approaches to medical marijuana legalization or not to legalize at all. And both medical and recreational marijuana are on the ballot in South Dakota.


Arizona

Arizona is the only state where the first-time possession of any amount of marijuana is a felony offense. Arizona voters attempted to approve adult-use marijuana legalization in 2016 but failed to pass Proposition 205 by a margin of just under 3% (51.32% disapproved, 48.68% approved). Experts believe the measure failed because voters were discouraged by the licensing structure and other legal states’ outcomes. Arizona voters will have another chance in November to legalize adult-use marijuana through Proposition 207. Some polling suggests Proposition 207 could have a similar outcome, with 46% of voters supporting the measure and 45% in opposition.

Proposition 207 – Smart and Safe Arizona

The law would allow limited marijuana possession, use, and cultivation by adults 21 or older. Proposition 207 amends criminal penalties for marijuana possession, bans smoking marijuana in public, and imposes a 16% excise tax on marijuana sales that would fund public programs. Prop. 207 authorizes state and local regulation of marijuana licenses and allows expungement of marijuana offenses.

✔ | Criminal justice reforms
       Offers expungement provisions.
✔ | Social equity provisions
       Proposes reinvestment in disproportionately impacted communities.
✖ | Employment protections
✔ | Home grow

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Mississippi

Mississippi voters will have the opportunity in November to vote on two ballot measures to establish a state medical marijuana program. Initiative 65 was originally proposed by Medical Marijuana 2020, while the state legislature proposed Alternative 65A as the competing measure. Both measures would amend Mississippi’s constitution and it is only the second time in the state’s history that the legislature has utilized the alternative measure process for a citizen initiative. According to a June 2020 poll, an overwhelming majority of Mississippi voters support medical marijuana (81%). Early polling appears to show voters prefer Initiative 65’s approach. On the ballot, voters will first be asked to decide whether they support “either measure” or neither measure” for reform; an “either” selection allows the voter to proceed to a second question to choose their preferred version.

Initiative 65

Initiative 65 and Alternative 65A propose to amend the Mississippi Constitution to allow qualified patients with debilitating medical conditions, as certified by Mississippi licensed physicians, to use medical marijuana. This amendment would allow medical marijuana to be provided only by licensed treatment centers. The Mississippi State Department of Health would regulate and enforce the provisions of this amendment.

✖ | Criminal justice reforms
✖ | Social equity provisions
✖ | Employment protections
✖ | Home grow

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Alternative Measure #65A

This constitutional amendment is proposed as a legislative alternative measure to Initiative No. 65 and would establish a program to allow the medical use of marijuana products by qualified a person with debilitating medical conditions.

✖ | Criminal justice reforms
✖ | Social equity provisions
✖ | Employment protections
✖ | Home grow

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Montana

In November, Montanans will vote on multiple initiatives to legalize full adult-use marijuana. Activists in Montana are required by law to submit to two separate measures, one being an initiated state statute (I-190) and the other a constitutional amendment (CI-118). Medical marijuana has been legalized in Montana since 2004 and voters have made multiple alterations to the original law via the initiative process. According to a February 2020 poll conducted by the University of Montana, 54% of Montanans support passing adult-use legalization and 37% oppose establishing a state adult-use program.

I-190

I-190 legalizes the possession and use of limited amounts of marijuana for adults over the age of 21. I-190 requires the Department of Revenue to license and regulate the cultivation, transportation, and sale of marijuana and marijuana-infused products and to inspect premises where marijuana is cultivated and sold. I-190 allows a person currently serving a sentence for an act permitted by I-190 to apply for resentencing or an expungement of the conviction.

✔ | Criminal justice reforms
       Offers expungement and resentencing provisions.
✖ | Social equity provisions
✖ | Employment protections
✔ | Home grow

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Constitutional Initiative No. 118 (CI-118)

Under the Montana Constitution, a person 18 years of age or older is an adult, except that the legislature or the people by initiative may establish the legal age of purchasing, consuming, or possessing alcoholic beverages. CI-118 amends the Montana Constitution to allow the legislature, or the people by initiative, to establish the legal age for purchasing, consuming, or possessing marijuana.

✖ | Criminal justice reforms
✖ | Social equity provisions
✖ | Employment protections
✖ | Home grow

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New Jersey

After the state legislature failed to enact a full legalization statute, New Jersey voters will have the opportunity to approve marijuana via the legislatively referred constitutional amendment, Public Question 1. Legislators introduced the constitutional amendment a little over a year after failing to approve S-2703 which also would have legalized adult-use consumption for New Jersey residents. S-2703 failed to gather enough votes and legislators were concerned about the societal impacts associated with legalization. Polling has indicated that over 60% of New Jerseyans support the constitutional amendment.

Public Question 1

This amendment would legalize a controlled form of marijuana called “cannabis.” Only persons at least 21 years of age could use cannabis products legally. The proposed amendment is open-ended and leaves the creation of the regulatory regime to the Cannabis Regulatory Commission, which would be tasked with overseeing the new adult cannabis market. While the amendment does not include any criminal justice reforms, New Jersey recently passed a record sealing bill that applies to most drug offenses.

✖ | Criminal justice reforms
✖ | Social equity provisions
✖ | Employment protections
✖ | Home grow

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South Dakota

South Dakota will make history in the upcoming election by becoming the first state to ever vote on medical marijuana and adult-use legalization measures in the same election. South Dakotans have voted on medical marijuana initiatives multiple times in the past two decades, but voters to date have not provided majority support for any prior proposal. Other attempts to legalize full adult-use and medical marijuana in South Dakota have failed to garner enough signatures to be placed on the ballot. Early polling suggests both initiatives are experiencing support leading into November with approximately 70% supporting the medical initiative, and about 60% supporting the adult-use initiative.

Initiated Measure 26 (medical marijuana initiative)

This measure legalizes the medical use of marijuana by qualifying patients, including minors. "Medical use" includes the use, delivery, manufacture and, for State residents, cultivation of marijuana and marijuana-based products to treat or alleviate debilitating medical conditions certified by the patients' physicians. The measure legalizes marijuana testing, manufacturing, and cultivation facilities, as well as marijuana dispensaries. These establishments must register with the State Department of Health.

✖ | Criminal justice reforms
✖ | Social equity provisions
✖ | Employment protections
       There are occupational licensing protections but employers have wide discretion.
✔ | Home grow

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Constitutional Amendment A (adult-use Initiative)

An amendment to the South Dakota Constitution to legalize, regulate, and tax marijuana; and to require the Legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use. The amendment authorizes the State Department of Revenue to issue marijuana-related licenses for commercial cultivators and manufacturers, testing facilities, wholesalers, and retailers.

✖ | Criminal justice reforms
✖ | Social equity provisions
✖ | Employment protections
✔ | Home grow

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Psychedelics

This November, Washington D.C. and Oregon may join a short but growing list of localities relaxing psychedelic laws. The movement to decriminalize psychedelic drugs had its first victory in 2019 after Denver, Colorado, decriminalized psilocybin, the psychedelic compound found in “magic” mushrooms. Since then, three cities have decriminalized psilocybin and dozens of others have considered similar legislation. Oregon’s measure provides a clearer path to the authorized use of psychedelic drugs while Washington D.C.’s measure leaves questions about the extent to which psychedelic drug laws would substantially change.


Oregon

If Measure 109 passes, Oregon will become the first state to legalize the therapeutic use of psychedelics. Whatever Oregonians decide on the issue of legalizing therapeutic use of psychedelics, voters will also have another opportunity to reform its current psychedelic drug prohibition. Oregon Measure 110 would reclassify all drug possession, including psilocybin mushrooms, to no more than a Class E violation resulting in a maximum $100 penalty or completion of a health assessment.

Measure 109

Oregon Measure 109 would allow for the supervised therapeutic use of psilocybin mushrooms at state-licensed facilities for people over the age of 21. Proponents of Measure 109 cite evidence of the effective use of psilocybin mushrooms to treat anxiety, depression, and addiction. However, the measure does not require a medical diagnosis of mental illness to receive supervised psilocybin treatment.

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Washington, D.C.

In 2014, Washington, D.C. voters approved a ballot measure legalizing the recreational use of marijuana. In the wake of legalization, activists behind the 2014 marijuana initiative shifted their focus to psychedelic laws. Proponents of Initiative 81 argue that psychedelics can be an effective treatment for post traumatic stress disorder, anxiety, depression, and addiction.

Initiative 81 - Entheogenic Plants and Fungus Measure

Washington, D.C.’s initiative 81 would make non-commercial use, cultivation, distribution, transporting, and possession of psilocybin mushrooms and psychedelic plants law enforcement’s lowest priority. Initiative 81 would not decriminalize or legalize these drugs, but instead would ask the D.C. Attorney General and U.S. Attorney for D.C. to stop filing charges for non-commercial psilocybin mushroom and psychedelic law violations.

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Criminal Justice

In addition to the six states and Washington, D.C. with marijuana or psychedelic reform measures, California, Oregon, and Oklahoma residents will vote on criminal justice measures that affect in various ways drug prosecution and sentencing, as well as the impact of a drug conviction. Our list encompasses criminal justice measures that would affect state-level drug laws, bail systems, voting rights and the effects of criminal history on sentencing.


California

California voters will have twelve propositions on their ballots come November. Propositions 17, 20, and 25 focus on criminal justice. California is one of 21 states that do not allow residents to vote while imprisoned or on parole. Proposition 17 would aim to change that. Propositions 20 and 25 were crafted in response to recent reforms designed to reduce California’s imprisoned population and cash bail systems, respectively.

Proposition 17 - Voting Rights Restoration for Persons on Parole Amendment

Currently, California law does not allow residents to vote while imprisoned or on parole. California Prop 17 would restore the voting rights of parolees. If passed, an estimated 50,000 California residents would regain their right to vote.

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Proposition 20 - Criminal Sentencing, Parole, and DNA Collection Initiative

California Prop 20 would allow prosecutors the discretion to charge certain property and fraud misdemeanors as a misdemeanor or felony. Specific to drug offenses, Prop 20 would expand DNA sample collection of persons charged with misdemeanor drug possession. In addition, Prop 20 would increase penalties for persons who violate the conditions of their parole three times, likely resulting in an increase in prison admissions.

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Proposition 25 - Replace Cash Bail with Risk Assessment Referendum

California Prop 25 allows residents to vote to uphold or reject Senate Bill 10. Senate Bill 10, passed in 2018, replaced cash bail with a risk assessment system. A vote of “yes” would uphold the risk assessment program in lieu of cash bail and a vote of “no” would maintain the current cash bail system.

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Oklahoma

State Question 805 seeks to amend the Oklahoma Constitution to preclude the application of severe “sentence enhancements” for persons convicted of nonviolent crimes based on prior nonviolent crimes. Proponents argue these “sentence enhancements,” which can often include prior drug offenses, contribute to Oklahoma’s very high incarceration rates. Opponents express concern this initiative could unduly limit the sentences available to repeat nonviolent offenders.

State Question 805 - Criminal History in Sentencing and Sentence Modification Initiative

The Criminal History in Sentencing and Sentence Modification Initiative is a bold effort to define and limit what past convictions can be used to enhance the sentence for a new crimes. SQ 805 is focused on limiting the application of "sentence enhancements" to only violent crimes, and it states it is not to be "changing, or affecting sentences for a person who has ever been convicted of a violent felony, no matter when convicted." In addition, this measure would allow people to petition a court to have their sentences shortened if they are currently in prison for nonviolent convictions and had received a sentence enhancement.

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Oregon

The most ambitious criminal justice reform ballot measure of 2020, Oregon Measure 110, gives residents the opportunity to determine if personal drug possession should be decriminalized. If passed, the Oregon Criminal Justice Commission estimates Measure 110 would reduce possession convictions by 91%.

Measure 110 - Drug Decriminalization and Addiction Treatment Initiative

Measure 110 would redesignate drug possession charges to no more than a Class E violation resulting in lesser penalties of a maximum $100 fine or completion of an addiction and substance use health assessment. If passed, the measure will establish the Drug Treatment and Recovery Service Fund. The Drug Treatment and Recovery Fund will be financially supported by marijuana revenue and savings accrued from reducing arrests and incarceration of drug possession charges.

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