Rejecting the wishes of 74 percent of V.I. voters in a 2012 referendum, the Senate Rules and Judiciary Committee voted Wednesday to kill legislation allowing the manufacture and processing of industrial hemp in the territory.
The bill [Bill 31-0100] sponsored by Sen. Terrence "Positive" Nelson arose out of a ballot question from 2012, asking, "Are you in favor of the legislature enacting legislation that allows for the productions, processing, manufacturing and distributing of industrial hemp in the Virgin Islands?”
At the time, 4,550 Virgin Islanders voted yes and 3,374 voted no, for a solid 57 percent margin of victory.
Introducing the measure, Nelson recalled the successful 2012 referendum and said many states have since started industrial hemp industries. He said concerns about the possibility of federal law enforcement shutting down the industry were unfounded.
Nelson pointed to the example of the state of Kentucky, where he said the U.S. Drug Enforcement Agency had taken some action against unregistered farmers and confiscated seeds, but later released the seeds and reached an accommodation. The DEA agreed to leave the state alone so long as farmers raising hemp were registered with and abiding by their contract with the state.
Concrete, fuels, hemp oils and cosmetics made from hemp are all already available legally in the territory, Nelson said. He said the bill allows a local industry and creates an application process, where applicants for growing hemp must have their fingerprints taken, their land registered and a background check.
Licensing and Consumer Affairs Commissioner Devin Carrington, Agriculture Commissioner Carlos Robles and people already selling hemp products legally in the territory all testified in support of the bill, saying it could generate revenue in the local economy, producing products that are already legal.
"The totality of the information provided to me has convinced me that this jurisdiction should proceed," Carrington said.
"Key to my support is that there have been no consequential moves on the part of the federal government to take legal action against jurisdictions that have proceeded despite the federal stance," he continued. “In addition, there is a clear distinction between industrial hemp and marijuana based on the percentage of tetrahydrocannabinol each contains and this legislation defines industrial hemp on that basis.”
Robles said he testified against the bill when it was last heard in November of 2015, out of concern that the Department of Agriculture did not have the personnel and equipment to conduct testing and monitoring of hemp production. But the bill was amended to shift some of those responsibilities to the University of the Virgin Islands and now the department endorses the bill, Robles said.
UVI Agricultural Experiment Station Director Robert Gottfried testified in support, saying the university could work on studies of how and where to grow hemp, and could help with testing.> He said the bill "will provide for a new agricultural commodity to be produced in the U.S. Virgin Islands and can have a positive financial and social impact on the community."
But Gottfried also said UVI would need additional funding to do any testing or research.
Police Commissioner Delroy Richards gave largely neutral testimony, saying the V.I. Police Department was prepared to enforce the law. He did raise a concern about V.I. police placed with federal task forces having to enforce federal law, which still prohibits growing hemp.
Attorney General Claude Walker testified vehemently against the bill, saying that federal law had recently changed to allow research on hemp but that it was still highly restricted and still forbids commercial development. The bill, as written, would violate federal law and could be rendered inoperative as a result, he said.
While some states had entered into agreements with the federal government, and the federal government had not been prosecuting individuals in states where it had been made legal, that could change. Federal law only allowed state institutions and universities to study hemp, not private companies or individuals, he said.
Walker also said that while some states have legalized marijuana, it remains against federal law and federal policies to not prosecute when it is legal at the state level could change with a new administration.
"Do you know of any state that has commercial hemp farms?" Sen. Justin Harrigan asked.
"Yes, Vermont," Walker said. "But it is interesting. … They have farmers sign a waiver saying they won’t go to the state to complain if they are arrested" by federal law enforcement, Walker said.
"I think that is unfair," Walker said. If a V.I. farmer follows V.I. law, "What do we say to him if he is arrested?" he asked.
More viscerally, Walker said the bill would pervert justice:
"To be quite open and frank, what this piece of legislation would ultimately accomplish, if passed, is this: It would violate established federal statutes; desensitize citizens to the rule of law; and, to torture the plain language, purpose, meaning, and scope of the Agricultural Act of 2014—thereby undermining and perverting justice," Walker said.
Walker said regulations on the industry should be in place before any bill allowing the industry is passed, raising concerns about farmers trying to grow hemp before regulations were in place, resulting in federal law enforcement action.
Sen. Novelle Francis and others said they were not necessarily opposed in principle but would like to see regulations and issues with federal law enforcement addressed first.
Sen. Kenneth Gittens, the committee chairman, said he would be cautious about changing the law.
"What continuously makes this difficult … is on the basis of this talking about research and development under a university. The university testified today they are not in a position to do so. But there is still language that speaks to farmers applying for licensure and for commercial purposes and applying to the Department of Agriculture for licensure," Gittens said.
Sen. Jean Forde asked Walker if he could support the bill if it were changed to limit it to research by the university. Walker said he would not support it.
Testifying for and against several items of legislation in recent months, Walker has staked out a position against lessening criminal penalties under any circumstances, and in favor of increasing penalties in many circumstances. (See: Senate Considers Updating 1921 Petit Larceny Law in Related Links below)
Sen. Nereida "Nellie" Rivera-O’Reilly moved to table the bill indefinitely, which would effectively kill the measure until the next election and a new Legislature.> Voting to table the bill were Rivera-O’Reilly, Francis, Harrigan, Gittens and Sen. Janette Millin Young. Forde voted no. Sen. Neville James was absent.
The committee also voted to approve a bill sponsored by Sen. Sammuel Sanes to double fines for speeding in a work zone. Sanes said public workers are put at risk when drivers go too fast and do not pay attention.
Police Commissioner Richards and Assistant Commissioner Dennis Brow testified in support. Brow said there has been one death and several accidents as a result of speeding through work zones in recent years, adding that he has been personally pulled so that he lost his footing, when a truck sped by a work zone.>
According to Brow, 32 states and Washington, D.C., all double fines for speeding in work zones.
"In many states the enhanced penalty is applicable only if workers are present or signs are posted," Brow said.
Senators said there would be amendments to address signage when the bill was considered before the full Senate.> The committee voted unanimously in favor of the measure, with James and Millin Young absent. Millin Young was attending the meeting via an online connection and was disconnected immediately before the vote.