Why Does Marijuana Decriminalization Not Include Concentrates?

New York, the state with the America’s most populous and one of its most visited cities, did not legalize marijuana this year. For a consolation prize, Gov. Andrew Cuomo and state lawmakers did pass what might look like the next-best thing: decriminalization.

As soon as Cuomo signs the bill into law, possession of up to two ounces of cannabis flower will be a “violation,” punishable by a fine of “no more than $200.” Someone caught with less than an ounce can be punished no more severely than with a $50 fine, but an ounce of flower, only.

For anyone possessing cannabis concentrates — including, strictly legally speaking, the contents of vape pens — the same old bad laws are still in effect. The same is true in other states and cities that have separate statutes for flower and concentrated cannabis, and that have failed to change one while altering the other.

And that’s just bad policy, advocates say.

The change in state law follows Cuomo’s failure to legalize, but it also follows moves made by district attorneys in Manhattan and Brooklyn.

Last summer, prosecutors in those two boroughs announced they would stop prosecuting low-level possession cases, and could police — whose hard work made New York City one of the most punitive places in the United States for marijuana, with more arrests per capita than deep-red states like Oklahoma — please stop bringing them such weak cases?

They did stop. And that, in turn, led to a decent-sized explosion in the cannabis industry, with emboldened delivery services more and more aggressively marketing their product to more and more emboldened cannabis users.

(Reader, I can tell you: It is easier than ever before to obtain and consume cannabis in New York City, a place where not too long ago, police were thrilled to make possession arrests.)

However, the harsh marijuana penalties were still on the books, and “decriminalization” was only as good as the local DA — a promise, and not a guarantee. 

The statewide decriminalization bill, sponsored by state Sen. Jamaal T. Bailey, specifically reduced penalties for “unlawful possession” of less than an ounce to $50. And “one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than one ounce” is punishable by a $200 fine.

At first glance, that definition might seem to capture concentrates—at least, it should. But, according to advocates and defense attorneys, it doesn’t.

Concentrates are defined separately from “marihuana,” under New York Penal Law 220, which Bailey’s bill does not change.

“Less than an ounce of cannabis concentrate may lead to a felony charge,” warns attorney Stephanie Selloni, a Long Island-based criminal defense lawyer, on her website. Very simple possession — getting hassled for a vape pen, or being found with a gram or two of shatter — is a misdemeanor, punishable by a year in jail and a $1,000 fine.

Realistically, New York City is not suddenly a forbidden zone for cannabis concentrates. In March, NYPD told a City Council hearing that they wouldn’t bother making “THC oil” arrests, unless the oil in question contained the same compounds found in synthetic concoctions like K2 — sales of which are banned in the state, yet still happen at corner stores and gas stations.

But plenty of New York is not in New York City. And at the same time, there’s still a law on the books criminalizing concentrates, which, in a pharmacological sense, are very similar to flower cannabis, with the same active ingredients: tetrahydrocannabinol (and other cannabinoids), and terpenes. 

Treating them differently legally, especially in an era when concentrates continue to grow in popularity, makes zero sense.

“The notion of decriminalizing flower while leaving criminal penalties in place for concentrates is analogous to giving a parking ticket to a car while impounding a truck for the same expired meter,” Justin Strekal, NORML’s political directo, told Cannabis Now in an email. “It is disingenuous to make the distinction and results in perpetuating the failed policies of the War on Drugs.”

TELL US, does it make sense to you to have stricter penalties for cannabis concentrates versus cannabis flowers?