An increasing number of Delaware patients and caregivers are reportedly clamoring for the right to grow their own marijuana but efforts to push a home cultivation act failed in 2020 and from the looks of it, they may not get it either this year.
There are an estimated 9000 patients in the First State who depend on cannabis to treat their conditions. However, insurance does not cover medical marijuana. This places a greater burden on most patients who are forced to put in extra effort to get access to cannabis. Unfortunately, House Bill 243, which was expected to alleviate the issues caused by the limited access to marijuana medication patients, failed to pass last year. The proposal would have also ensured the right of patients to grow specific strains best suited for their conditions that may not always be available at dispensaries.
HB 110 which would have allowed adults aged 21 and older to legally possess and consume, but not cultivate, marijuana, likewise failed last year. Democratic lawmakers Rep. Ed Osienski, who introduced the bill, says that he will file a similar one this season. The proposal will intend to create jobs and generate tax revenue for the state but not allow Delawareans to grow their own. While HB 110 co-sponsor Sen. Trey Paradee previously pointed out that home growing could only add to the black market, it is worth noting that it can also cut into commercial profits as well.
This article was reviewed and updated for 2021.
Overview of Delaware Marijuana Laws
Recreational weed is still illegal but decriminalized while medical use is legal. Home cultivation for personal and medical marijuana is still not allowed. Below is a summary of the corresponding punishments awaiting those who are caught violating Delaware marijuana laws.
- Possession – The penalty for possessing one ounce or less for personal use has been reduced to a civil penalty punishable only by a fine of up to $100. In excess of one ounce up to less than 175 grams is a misdemeanor that carries the penalty of up to 3 months in prison and a maximum fine of $575. Anything beyond this amount is already a felony. See “Cultivation” below for a list of penalties corresponding to each degree of felony.
- Sale – Selling marijuana, as well as distributing and manufacturing it is Class D felony if the amount is less than 1500 grams. If one or more aggravating factors are involved the offense, or the offender has one prior conviction, the charge is a Class C felony. Those with two or more get charged with a Class B felony. Felony charges get more serious as the amount of marijuana increases.
- Cultivation – Growing is the same as manufacturing, which means it is considered a felony. Felony penalties are as follows:
- Class F – possession of 175 grams but less than 1500 grams is punishable by a prison sentence of up to 3 years
- Class E – possession of 1500 grams but less than 3000 grams is punishable by a prison sentence of up to 5 years
- Class D – possession of 3000 grams but less than 4000 grams is punishable by a prison sentence of up to 8 years
- Class C – possession of 4000 grams but less than 5000 grams is punishable by a prison sentence of up to 15 years
- Class B – possession of 5000 grams or more, with or without and aggravating factor is punishable by a prison sentence of2 to 25 years
History of Marijuana in Delaware
For a northeast state, Delaware took a step towards marijuana reform in a timely fashion during the push for medical marijuana legalization. In 2011, Gov. Jack Markell signed SB 17 which allowed patients 18 and older to use marijuana to treat certain serious or debilitating conditions while giving them sufficient protection from arrests so long as they comply with the law.
However, SB 17 did not pass without encountering any resistance. In, 2012, Delaware’s US Attorney Charles Oberly wrote to Gov. Markell, threatening to prosecute state officials for drug trafficking if they push through with the medical marijuana law. Despite Oberly’s threats, the program was launched but the first dispensary, also known as “compassion centers” did not open until 2016. Markell also signed SB 90 or “Rylie’s Law” in 2015 which gave patients with severe seizure disorders legal access to CBD.
The momentum gained from the approval of the medical marijuana legislation continued when Gov. Markell signed HB 39 which decriminalized the possession of an ounce or less of marijuana by adults aged 21 and older. It reduced the offense to a civil penalty that caries only a fine of $100. Two years after, the first legalization bill was proposed by Sen. Margaret Rose-Henry. It was introduced at a time when Delaware’s neighboring states were also busy mulling over adult-use legalization.
It was clear that Delaware was put on track towards legalization in the last few years by the desires of its constituents and pressure from neighboring states. In between 2018 and 2019, Gov. John Carney approved a number of marijuana-related bills: Senate Bills 197, 45 and 37. SB 197 allowed those with a single conviction for possession qualify for expungement while SB 45 expanded the decriminalization law to include individuals under 21. SB 37 allowed single cannabis misdemeanor convictions to be expunged after 5 years and single cannabis felony convictions after 7 years.
Marijuana home cultivation laws outside of Delaware
How do Delaware marijuana laws compare with those in other US states? Check out our post on Marijuana Growing Laws in the United States.
FAQs about marijuana legalization in Delaware
No, recreational cannabis is still illegal in Delaware but possession of small amounts has already been decriminalized.
None. Home cultivation of recreational cannabis is not allowed in Delaware.
Yes, cannabis for medical use is legal in Delaware.
None. Home cultivation of medical cannabis is not allowed in Delaware.
Democratic lawmakers Rep. Ed Osienski, along with co-sponsor Sen. Trey Paradee and others, have introduced a recreational legalization bill earlier this year that intends to create jobs and generate tax revenue for the state but not allow Delawareans to grow their own.
Residents are not allowed to cultivate marijuana, whether recreational or medical, at home in Delaware.
Only adult workers employed by a licensed marijuana production entity are allowed to grow cannabis in Delaware.
With a majority of northeast states adopting a coordinated marijuana legalization plan, it is reasonable to expect that a recreational legalization law will be passed especially since the state is eager to replenish its depleted funds. However, it is very likely that home cultivation won’t make it into Delaware marijuana laws since one of the chief concerns of northeastern governors is to ensure a fair and competitive market for all states while reining consumption by way of taxation. The opening of the marijuana market in the region will allow greater legal access even to patients which could lessen the need for home cultivation.