This is it. The countdown for the end of the legislative session has started, and it’s only a matter of time until the fate of cannabis legalization in New Mexico is decided by our lawmakers. The moment hangs in the air, frozen and sharpened by our anxious senses. But as with most things in the past year, fear, doubt and a dreadful sense of foreboding have settled over our fair land. The surefire bet has—seemingly overnight—jumped the curb and thrown its odds all out of whack. The gamblers are scrambling to contact their bookies, but the phone lines have suddenly gone dead.

Why has the wind suddenly been sucked from our sails? Why are the phone lines here at the Rolling Paper exploding with panicked weed enthusiasts, threatening to move to Arizona?

Because legislators have been hemming and hawing while the rest of us have been making sweat stains. In a 60-day session, they’ve decided to let the most newsworthy pieces of legislation simmer as they argue over policy specifics. It’s likely necessary, but it’s still uncomfortable for those of us who have been waiting years for New Mexico to legalize. It’s stressful, and we’re tired of waiting.

Now it appears as though the whole thing might just go the same way it has in years past: Left dead at the feet of a Senate committee.

A Tale of Two Bills

HB 12—Cannabis Regulation Act, co-sponsored by Rep. Javier Martínez (D-Albuquerque), Andrea Romero (D-Santa Fe) and Deborah Armstrong (D-Albuquerque), would legalize recreational cannabis for adults over 21 if it was made law. The bill was passed in the house near the end of last month. Earlier this month it passed through the Senate Tax, Business and Transportation Committee before heading to the Senate Judiciary Committee.

Although there were others, HB 12 was the darling of cannabis advocates and the media. Most everyone agreed it was a shoo-in and just kicked back. But then SB 288, a competing legalization bill sponsored by Sen. Cliff Pirtle (R-Roswell), came along for the ride when members of the Senate Tax, Business and Transportation committee opted to approve both bills in a bid to make the legislators come to a compromise. The committee wanted them combined into a single bill that could appeal to everyone. Both bills appeared to be supported along party lines. Democrats sponsored HB 12 and a Republican sponsored SB 288.

“I’m moving them both forward, because I think the discussion continues,” said Senate Majority Leader Peter Wirth (D-Santa Fe). “I don’t want there to be a sense that we’re picking a bill, one over the other.” Wirth voted in favor of both bills moving to the Judiciary Committee.

Both bills were similar in many ways. They both would legalize the possession and purchase of up to two ounces of marijuana or 16 ounces of cannabis extract for adults over 21. Both would also empower a regulatory agency to handle market rules and production applications.

But there were a few key differences that kept the opposing sides from hashing out an agreement. As for the regulatory body that would be created to direct the market, HB 12 looked to give the Regulation and Licensing Department the power of oversight, while SB 288 wanted to create an all-new, independent agency. The two bills handled taxes differently as well. SB 288 would have charged a 2 percent municipal tax that would go directly to local governments to do with as they see fit. It would have charged a 2 percent tax that would go to the county to spend as it pleases. On top of that, it would also have charged a 2 percent excise tax, from which wholesale purchases by retailers would be exempt. HB 12, on the other hand, would have charged an excise tax of 8 percent. It would charge a municipal and county tax—both no more than 4 percent—to be used by the respective governing bodies as they please.

Hammering Out a Compromise

Both bills faced a number of changes before the winner could be pushed through. Lawmakers removed the ability of counties and municipalities to opt out of allowing cannabis sales from SB 288. This controversial inclusion would have opened the door to “dry” areas where illicit cannabis sales could potentially be given a chance to flourish. Legislators also removed language from the bill that would require cannabis stores to remain at least one mile apart. Provisions to allow Native tribe participation were also added.

Meanwhile, HB 12 was amended to increase plant limits for microbusinesses from 99 plants to 200 and allow more businesses to incorporate public consumption areas.

But while lawmakers on both sides were willing to meet in the middle on many issues, imposed plant limits continued to be a sticking point. Under HB 12 state regulators would have been able to limit a producers’ ability to produce plants if a committee determined that the amount of plants being produced is threatening the economic viability of the industry or adequate supply of cannabis. But SB 288 proposed no plant limits at all on producers.

The Need For Equity

One thing that led many cannabis advocates to criticize SB 288 was that it failed to provide provisions that would address equity and the harms caused to low-income communities and communities of color by the Drug War.

In a press release, Emily Kaltenbach, senior director for resident states and New Mexico for the Drug Policy Alliance, said, “Though SB 288—another legalization bill that does not include any social justice and equity provisions or public health protections, and continues to perpetuate the criminalization of New Mexicans—was also passed out of committee, New Mexicans have made it abundantly clear that, while they are excited to make marijuana legalization a reality in the state, repairing the damage done by the drug war is non-negotiable.”

The DPA had shown support for HB 12, however, as the bill would expunge the records of many low-level cannabis offenders and set up a fund to help communities that have disproportionately been affected by marijuana prohibition. It would also prioritize licensing microbusinesses to level the playing field for small companies looking to enter the new market.

Senate Judiciary Committee

Last week the bills faced their penultimate tests in committee before being sent to the floor for a vote. Both were sent to the Senate Judiciary Committee in the hopes that the bills’ sponsors would collaborate and produce an all-encompassing bill that pleased most if not all.

On Sunday the two bills were listed as part of the committee’s agenda; but at the last minute, both were removed from the schedule. According to the Associated Press, the move was made because the Senate vote was being complicated by divergent views on marijuana taxation, licensing and pardon procedures for past convictions.

Both bills again showed up on Monday’s agenda but were never discussed.

You can be forgiven if this is bringing up some serious negative emotions. Many of us are still suffering from the trauma of seeing similar legislation tabled in the very same committee last year. At the time, legislators said they were unhappy with a bill that would have set up a state-run recreational marijuana market.

The year before, we got to see a legalization bill flounder in the Senate Finance Committee, then chaired by conservative Democrat, former Sen. John Arthur Smith. He was well-known as an opponent of legalization, and one of the signs that this year would be different was his ousting in favor of a more progressive senator. In fact, many cannabis advocates (including the author of this very article) were crowing that a recent house-cleaning that got rid of a number of ancient conservative Democrats was a surefire sign that legalization was inevitable this year.

Now it looks less promising.

What Legalization Would Mean to NM

There are only days left in the session, and advocates are chewing their nails to the quick. If the governor were to sign HB 12 into law, New Mexico would become one of the few states that actually legalized cannabis through legislation as opposed to voter initiative.

Gov. Michelle Lujan Grisham has made it clear on a number of occasions that she wants to see recreational cannabis legalized this year. The governor’s support of recreational marijuana has been a huge boon to advocates. In 2019 the governor even took it upon herself to create a cannabis legalization working group to advise legislators on legalization tactics for 2020. The group would ultimately produce a report that was used as the backbone of a legalization bill that was left to die in committee.

Last May Lujan Grisham criticized state lawmakers for failing to legalize marijuana when they had the chance. During a COVID-19 update, she pointed out that revenue losses following a dip in oil and gas prices brought on by pandemic lockdowns could have been offset by taxes gathered from a recreational cannabis market.

“The projections [for recreational cannabis] are nearly $100 million of recurring revenue into the budget,” said Lujan Grisham. “If we want economic support and economic relief, then we have to use every economic idea. And I want to point out also that the vast majority of New Mexicans favor recreational cannabis.”

The last year has been an ordeal for New Mexicans. Small businesses are drying up and looking for any kind of relief. The flow of money through the state has slowed to a trickle, and New Mexico is in dire need of a cash infusion. As it is, when the pandemic is over and our state opens her doors wide, there likely won’t be much left to attract tourism and industry. Legalizing recreational cannabis will open an avenue to immediate funds that is absolutely necessary.

The only problem is that an initial “green rush” might already be over. Recreational sales to New Mexicans will likely be huge (our state has one of the most pro-pot constituencies in the nation), but as neighboring states adopt legalization ahead of us, they cut off potential cannabis tourism revenue. The longer we wait, the lower the state’s profit margins will be.

But more importantly, New Mexico must legalize recreational cannabis now if it wants to be remembered in the future as being on the right side of history. It’s clear that federal legalization will remain just out of reach for the foreseeable future, leaving it up to the individual states to do the right thing and end this unfair and immoral prohibition. We have waited for far too long for our lawmakers to halt their political posturing and deliver the justice that the people so desperately want. Hopefully we won’t have to wait another minute.