New York state cannabis advocates were bitterly disappointed last year, when two rival legalization measures both failed to pass at the end of the state’s legislative session in June. One of those measures — pushed by Gov. Andrew Cuomo and generally disfavored by activists — has just been revised and reintroduced.
The state’s cannabis community is still parsing the details. But there is some skepticism as to whether the bill lives up to Cuomo’s promises on crafting a legalization model with a sense of social equity.
Cuomo’s Proposal: The Big Print
For the second year in a row, Cuomo has introduced a cannabis legalization measure in the state budget. In a budget outline released on Jan. 21, Cuomo calls for a “comprehensive regulatory approach to legalize cannabis.” The move follows through on a pledge the governor made just two weeks earlier in his annual State of the State address, in which he openly said: “Let’s legalize adult use of marijuana.”
Cuomo’s budget calls for creating a new Office of Cannabis Management to oversee “medical, adult-use and hemp programs.” In other words, all aspects of the cannabis plant would be regulated by one agency. Under the adult-use system, those over 21 will be able to legally purchase from licensed retailers. The state will also establish a “Global Cannabis & Hemp Center for Science, Research and Education” within the State University of New York (SUNY) system.
The outline explicitly addresses the question of equity: “The proposal will also correct past harms to individuals and communities that have disproportionately been impacted by prohibition.”
This likewise echoes rhetoric from Cuomo’s State of the State speech, when he said: “For decades, communities of color were disproportionately affected by the unequal enforcement of marijuana laws.”
And the budget outline reiterates Cuomo’s call last year for a regional bloc of Northeast states that embrace legalization and work together to have similar laws. In his plan, Cuomo notes he wants to work with Connecticut, New Jersey and Pennsylvania on cannabis laws.
A press statement plugging the budget plan touted it as a “nation-leading regulatory structure to regulate and control adult-use marijuana to ensure displacement of the illicit market, safeguard public health and safety, and encourage participation by communities and stakeholders that have been disproportionately impacted by the war on drugs.”
The Chances of Success for New York Pot in 2020
Some cannabis boosters are optimistic about Cuomo’s proposal.
“It’ll really be a gigantic market,” Morgan Fox of the National Cannabis Industry Association told CNN Business, noting New York’s large population, huge tourist draw and financial hub status. New York legalizing would “have ripples in global policy when it comes to cannabis,” he said.
But there is potential for another political logjam. The alternative measure that failed to pass last year was the Marijuana Taxation & Regulation Act (MRTA), and because New York runs on a two-year legislative cycle, it is officially still pending. And, again, Cuomo is hoping his measure will be ushered in along with the rest of the budget (although last year it was excised before the budget passed). In announcing the new measure in the Fiscal Year 2021 budget proposal, he was fairly explicit about this aim.
“I believe it is best done in the budget,” he told reporters. “I believe the budget is the opportunity frankly to make some tough decisions and work through tough issues that without the budget can often languish.”
So there is a sense of deja vu here. The Democrats taking the state Senate for the first time in years in the 2018 midterm elections resulted in a flurry of progressive legislation. But with cannabis legalization still stalled, there are now ominous forebodings of backlash in the Empire State.
The New York Times notes that Cuomo and his fellow Democrats are facing political fallout from a new law that sharply reduces the use of cash bail in favor of releasing arrestees on their “own recognizance,” in an effort to reduce jail populations. The law took effect on New Year’s Day — and was immediately followed by concerns over a rash of anti-Semitic attacks, some said to have been committed by perps released under the new law. Even Cuomo himself has already broached a tightening of the law.
Meanwhile, the MRTA advocates — who had viewed Cuomo’s 2019 legalization measure as too restrictive, and lacking sufficient equity measures — are weighing whether his new measure is worth supporting.
Some measures in the MRTA did get spun off into separate legislation that was passed last year. These include the expungement of thousands of low-level cannabis convictions, and closing the “public view loophole,” which allowed police to keep making marijuana arrests despite the decriminalization that has been in place in the state since 1977 — either for public smoking, or if suspects can be intimidated into showing cops their stash during a street stop. Under the reform package passed last June (kind of a consolation prize to activists in lieu of legalization), public use of pot has been dropped from a misdemeanor to an infraction.
But advocates insist there is much more to be done.
The Racial Disparities in New York Pot Policing
The racial disparity in cannabis arrests survived decriminalization, and has survived the new policy in New York City of de-emphasizing pot arrests. Will it also survive legalization?
A New York City Health Department report released in September of last year revealed that in the city, white folks use marijuana at a significantly higher rate than black folks—and at a rate twice as high as Latinos. However, based on police stats filed with the state Division of Criminal Justice Services, black and Latin New Yorkers accounted for a staggering 94% of all low-level cannabis arrests in New York City during the first six months of 2019. The NYPD arrested 1,436 people for possession or sale from January to June — with 1,349 identified as black or Hispanic.
And this was despite a “commitment to fair and equitable cannabis legalization” announced by Mayor Bill de Blasio in December 2018, when the Mayor’s Task Force on Cannabis Legalization turned in its recommendations.
Six months later, the city had still not closed the racial gap in cannabis busts.
The Start Smart NY website, which was launched to promote the MRTA, states: “Marijuana possession is one of the top misdemeanor arrests in New York State — and has been for the last twenty years. As a result, nearly one million New Yorkers have had contact with the criminal justice system — the overwhelming majority of whom, more than 80 percent — are Black and Latino, despite similar rates of consumption across racial and ethnic groups.”
In 2018, the Manhattan District Attorney joined the Brooklyn DA in announcing that his office would no longer prosecute low-level pot busts. With the election of Melinda Katz as Queens DA last year, another of New York City’s five boroughs has joined this policy. Katz promised she will “refuse to prosecute low-level marijuana arrests within Queens and will instead urge the legislature to legalize adult recreational cannabis and expunge all convictions for past arrests,” according to her campaign website.
But Melissa Moore, deputy state director for New York with the Drug Policy Alliance (DPA), told Cannabis Now that these policies have still failed to close the racial gap.
“There have been 800,000 cannabis arrests in New York state over the past 20 years, despite the 1977 law. With the new policies, arrest numbers have come down but the disparity has gotten worse,” Moore said. “It just shows the urgency of cannabis legalization in New York — it is clear that decrim has never been enough.”
Cuomo’s Proposal: The Small Print
But will even legalization be enough?
Upon release of Cuomo’s new proposal, DPA policy director Kassandra Frederique issued a statement applauding the progress — but finding that the equity measures are insufficient.
“We are pleased to see Governor Cuomo’s commitment to passing comprehensive marijuana legalization in the state budget this year, and to see him include social equity and small business incubator programs,” Frederique wrote. “We are disappointed Governor Cuomo doesn’t clearly guarantee that a portion of funds from marijuana sales will be reinvested into the communities most harmed by New York’s marijuana arrest crusade. Without this necessary component, the Governor’s proposal will not truly right the wrongs done to communities of color by disproportionate enforcement of marijuana.”
The continuance of disproportionate arrests, however, will be contingent on continued loopholes in the law. Still processing the text of Cuomo’s proposed legislation is David Holland, a New York City criminal defense attorney who is both president of the NYC Cannabis Industry Association and executive director of Empire State NORML. Speaking to Cannabis Now, Holland noted one loophole from existing law that survives in Cuomo’s new proposal: cannabis concentrates, presumably including hashish as well as oils and extracts, do not appear to be covered in the legalization.
Under New York State law, “marijuana” (now renamed “cannabis” under Cuomo’s proposal) falls under Penal Law 221, and has been decriminalized since 1977. But extracts and concentrates fall under Penal Law 220, for general “controlled substances,” with much harsher penalties.
“You can get busted for a concentrate and get booked on a ‘controlled substance’ offense,” Holland says. “That’s how they’ve been getting around this problem, and the new bill does not appear to change that.”
Holland adds that “the ‘public nuisance’ loophole will always remain” — although the new bill seems vague on how that is defined.
As long as loopholes in any legalization law persist, it’s a pretty good bet that racist enforcement will persist too. In the coming weeks, New York activists will have to decide whether Cuomo’s proposal sufficiently closes the loopholes, and sufficiently addresses equity concerns — or whether they will stick with the MRTA, at risk of the Legislature remaining divided over rival legalization bills.
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