By Charles Couch and Amir Vera
Capital News Service
RICHMOND – After months of an undercover investigation in 2008, a Yorktown County police officer finally had enough evidence to charge Brandon Gomez, then 18, with intent to distribute marijuana.
“I had actually been just basically the middleman,” Gomez said, describing himself as an intermediary between a dealer and users in marijuana sales.
During the investigation, the undercover officer bought four ounces of marijuana.
After Gomez spent a few nights in jail, the officer offered him a deal: If he turned in his dealer and buyers, the felony charges would be reduced to misdemeanors. Gomez reluctantly agreed, and spent the next six months betraying the people who trusted him most.
“The way I saw it, that was almost worse than me having to stay in jail – having had to deal with that for months on end,” Gomez said. “I lost friends because I tried to be honest with my close friends about what I had done about the guy I was middle-manning for.”
In 2009, Jordan McNeish was 20-years-old and living in Albemarle County. His neighbors had complained several times about noise from his apartment.
When he answered the door one night, thinking it was a friend, it turned out to be a police officer responding to another noise violation. The officer saw a beer in McNeish’s hand. Knowing McNeish was underage, the officer stepped into the apartment to investigate.
“He pushed past me, came into my house, threw his flashlight around and found a bag of what was marijuana,” McNeish said. The officer sent his partner to get a search warrant. When they came back, they ended up finding two ounces of marijuana.
McNeish was convicted of intent to distribute marijuana—a more serious offense than possession—and sentenced to five and a half years in jail. He got out after six months for good behavior and now has three years of supervised probation.
“It was determined to be an ‘intent to distribute’ charge not because of packaging or any other evidence other than quantity. Half an ounce is automatic intent to distribute in Virginia,” McNeish said.
The cases involving Gomez and McNeish illustrate how severely Virginia deals with marijuana possession. Both men felt their punishments outweighed their crimes. And both face the long-term consequences of being convicted criminals.
Virginia treats marijuana possession more harshly than many other states, handing down years-long sentences to people arrested with small amounts of the substance. Neighboring states have decriminalized marijuana or approved it for medicinal uses, but Virginia legislators this year hardly gave serious consideration to such ideas.
An exception was Delegate Onzlee Ware, D-Roanoke, who proposed House Bill 485. It sought to allow individuals convicted of marijuana possession to petition for expungement, and have the charges cleared, after five years.
“I believe in second chances; I believe a person can mess up. And once they’ve atoned themselves and pay restitutions and rehabilitated themselves, they ought to be restored back whole – meaning it shouldn’t show on their record,” Ware said.
The bill died in a subcommittee of the House Courts of Justice Committee.
Former Delegate Harvey Morgan, a Republican from Gloucester, is familiar with that panel. Before retiring in 2011, he tried for five years to relax Virginia’s marijuana laws.
At first, Morgan, a pharmacist, introduced bills to expunge criminal records of marijuana charges. Then he altered his strategy and tried decriminalizing marijuana – changing the $500 criminal fine for simple possession to a $500 civil charge and eliminating the threat of prison time.
Morgan’s efforts also foundered in the House Courts of Justice Committee.
“The criminal subcommittee consisted primarily of attorneys who have been prosecutors, and they have the mindset that it (marijuana possession) should not be decriminalized,” Morgan said. “If it went to any other committee in the General Assembly, it would stand a lot better chance.”
As a result, Ware said, Virginia remains very strict concerning marijuana laws.
“Virginia is in the minority on this. Other states usually just automatically expunge your records after five or 10 years, especially on nonviolent crimes and misdemeanors. But Virginia, once again, holds the distinction of being in the very small minority. I know we have the most restricted expungement statute in the country,” Ware said.
Ed McCann, executive director of the Virginia chapter National Organization for the Reform of Marijuana Laws, says Virginia is typical of the South.
“I know states with harsher laws,” McCann said. “As far as Southern states go, we’re probably in the middle.”
He said Western states generally have the most liberal marijuana laws. New England is lenient, too. Connecticut is about to become the 17th state to allow marijuana for medical reasons. Under the Connecticut law, doctors could prescribe the substance specifically to patients with debilitating diseases such as cancer or AIDS.
Midwestern states are still pretty strict, McCann said. The mid-Atlantic states vary in how they treat marijuana users.
North Carolina has decriminalized the substance. So if you’re arrested there with a marijuana cigarette, you might get the equivalent of a parking ticket.
If you smoke marijuana in Maryland as treatment for glaucoma, judges might let you off. Maryland legislators are debating proposals to legalize marijuana for medical uses.
But if you’re arrested smoking marijuana in Virginia, even for medical reasons, you could face hard time – 30 days in a state prison on a first offense or as much as 10 years on a subsequent offense.
McCann says that’s unfair.
“There are a lot of pot smokers in Virginia, you know. We’re all regular people, and we need to be respected and not arrested anymore,” McCann said.
NORML’s goal is to legalize the use of marijuana by adults. The group supports having a regulated system allowing adults to buy marijuana for recreational, medical and spiritual use.
“In other words, just like alcohol – with restrictions and regulations that are approved by the community so that people know where marijuana’s being sold, they know who’s selling it and when it’s being done,” McCann said. “They can collect the taxes and they can make the regulation so that kids aren’t being allowed to access it.”
An initiative to regulate marijuana like alcohol will be on the ballot in Colorado in November. The state of Washington is planning a similar referendum.
Those elections may determine how the rest of the nation will view reforming marijuana laws, McNeish said.
“If that passes, I think that other states will probably find this goal is more realistic,” McNeish said. “But if that fails and gets pushed back another two years, I think it could be seven or 10 years before Virginia could do anything like that, because Virginia’s not going to be the first state to legalize it – that’s for sure.”
Before Virginia’s laws on marijuana can change, Ware and Morgan said, the mindset in the General Assembly must change – starting with the House Courts of Justice Committee.
“It never gets out of committee … The people that run it are prosecutors, and they don’t believe giving any break to anybody. Once you’re a criminal, they don’t believe in giving breaks. It’s just a difference in philosophy, so they kill the bill,” Ware said.
In the meantime, people like McNeish and Gomez must live with the consequences of being caught with marijuana. Their criminal records will haunt them the rest of their lives, making it hard to find work or housing and even vote.
Gomez is a senior at Virginia Commonwealth University. He’d like to join the Navy SEALs. But because of his record, that might not be possible.
“They passed this new mandate that said that no one, because they’re overfilled right now, with any sort of drug charges is allowed in,” Gomez said. “I know I have potential. I’ve always wanted to join the military, but now I may not be able to join.”
McNeish, who works doing auto restoration, said he has had issues applying for housing.
“I’ve been lucky with jobs,” McNeish said. “But I have noticed that it’s been extremely hard for me to find a place. Lots of applications ask if you have any criminal record; other applications only ask for felonies.”