Why Are New York's Pot Laws So Awful?

In his 2013 State of the State address last month, New York Governor Andrew Cuomo proposed reducing the penalty for possession of 15 grams of cannabis or less in public view. Since 1977, New York State law has provided that any amount of cannabis that is burning or in public view is a crime, a Class B misdemeanor, which is punishable by up to three months in jail and a fine of up to $500. Governor Cuomo proposed that public view possession of 15 grams or less should be a civil violation, which means no jail time and a maximum fine of $100. 

As a putative 2016 presidential candidate who claims to want New York State to “remain [the] progressive capital of the nation,” Governor Cuomo’s modest proposal on public view cannabis possession and his opposition to medical cannabis aren’t sufficiently progressive. New York State has a proud history of progressive, intelligent leadership on cannabis policy, but since the mid-'90s, the law-enforcement industrial complex has driven state cannabis policy and allowed other states to pass us by. New York State needs real, radical reform of its cannabis laws and policies, which have been a catastrophe for our civil rights, finances and public health.

New York City’s Cannabis Arrest Crusade: The Beginning of the End, or Just Sops to Keep Stop-and-Frisk? 

New York City added cannabis to its list of prohibited drugs in 1914, and New York State made cannabis sales a crime in 1927. In 1977, New York State made possession of up to 25 grams of cannabis in private a civil violation, but possession of any amount of cannabis that is burning or in public view is a crime. Since 1997, the NYPD has made over 600,000 arrests in its cannabis arrest crusade, mostly of young black and Latino men. In 2011, the NYPD made 50,684 arrests for simple cannabis possession, the second highest number in New York City history. 

Most of the people arrested for cannabis possession weren’t smoking it when they were arrested, and only had a small amount of cannabis on them when they were searched, usually illegally, by the NYPD. In contrast, in the rest of New York State (which contains over 57% of the state's population and is governed by the same cannabis laws as New York City), there were only 41,412 arrests for simple cannabis possession from 1997 to 2011 -- almost 93% less than the arrests in New York City alone during the same period.  

Being convicted for criminal possession of cannabis results in a permanent criminal record and its collateral consequences on housing, employment and education. The cost of that destruction of human capital dwarfs the $75 million or more a year it costs New York City to arrest and jail people for simple cannabis possession. However, as of next month, New York City cannabis users who are arrested for possessing small amounts will be issued a desk appearance ticket (DAT) and released instead of being held overnight by the NYPD (as long as they present ID and have no outstanding warrants).  

While many drug reformers are lauding Mayor Bloomberg for this shift in NYPD practice, as Harry G. Levine pointed out his recent post here, being issued a DAT still entails a full custodial arrest, handcuffs, an involuntary visit to the precinct, being photographed and fingerprinted, being locked up in a holding pen and a permanent criminal record. And although New York City’s arrests for simple cannabis possession dropped to 39,000 last year (a decrease of 22% from 2011 and the lowest number since 2006), that’s still almost a Citi Field full of cannabis arrestees. 

With support from Assembly Speaker Sheldon Silver and Sen. Jeffrey Klein, the leader of the Independent Democratic Conference (IDC), who are attempting a power sharing arrangement with the Republicans, decriminalization of public view cannabis possession may be on track for enactment this session. But Governor Cuomo’s proposal is inadequate for several reasons.  

First, despite Governor Cuomo’s claim that cannabis laws need to “[recognize] that possession in public is different from possession in one’s home,” decriminalizing different amounts of cannabis in public view and in private creates confusion for cannabis users who want to avoid criminal sanctions. Second, any amount of burning cannabis would remain a crime.

Third, and most importantly, other states have enacted or are seriously considering much more progressive cannabis policies.  In California, possession of an ounce or less of cannabis is a civil violation, punishable by a maximum $100 fine (plus fees), whether the cannabis is burning, in public view or in private. In Washington State, possession of an ounce or less of cannabis that is burning or in public view is punishable by a maximum $50 fine (plus fees). And in November, voters in Washington State and Colorado dealt a crushing blow to cannabis prohibition by legalizing the adult use and possession of an ounce of cannabis or less in private (and cultivation of up to six plants in Colorado), and directing their state governments to create a strictly regulated and taxed framework for cannabis sales. 

Bills to tax and regulate cannabis have been introduced in New Hampshire, Rhode Island, and Maryland, and are about to be introduced in Pennsylvania, Massachusetts, Vermont and Maine (the status of these bills is in flux as of this post). A 2010 Cato Institute study on the budgetary impact of ending drug prohibition estimated that New York State spends $654 million a year to enforce cannabis prohibition and could raise $186 million or more a year by taxing and regulating cannabis  And in a Quinnipiac University poll last December, 51% of New York State voters supported legalizing adult cannabis use.

New York State is ready for and deserves far more sweeping reform of its cannabis laws than Governor Cuomo’s public view possession proposal, which appears politically calculated to quell public discontent over the NYPD’s cannabis arrest crusade in order to protect its stop-and-frisk practices.

Medical Cannabis: Why My Mother Can’t Get Safe Access Yet

In 1996, California voters approved the Compassionate Use Act (also known as Proposition 215), which allows patients and their caregivers to possess and cultivate cannabis with a doctor’s recommendation.  Since then, 17 more states and the District of Columbia have enacted medical cannabis programs, including New Jersey in 2010 and Connecticut in 2011.  

Here in New York, the Assembly has passed a medical cannabis bill three times, most recently last year, and in a Siena College poll last year, at least 61% of New Yorkers supported the medical use of cannabis. But New York State still hasn’t acknowledged that cannabis is medicine for people with cancer and chronic pain (like my 70-year-old mother), as well as those with AIDS, multiple sclerosis and many other conditionsLast session’s medical cannabis bills only allowed certified patients to have 2.5 ounces of medicine.  And while previous versions of the bills allowed certified patients with physical, financial or transportation hardships to cultivate their own medicine (which is permitted by the Massachusetts Medical Marijuana Initiative that passed last November with over 63% of the vote), Senate Republicans refuse to allow the sickest, poorest and most immobile New Yorkers that option.

Historically, the roadblocks to medical cannabis in New York State have been Senate Republicans and their allies in law enforcement. But Governor Cuomo also doesn’t yet support medical cannabis. He claims that medical cannabis poses “tremendous risks” and that “the risks outweigh the benefits at this point,” without detailing those alleged risks. As Dr. Sunil Aggarwal pointed out in an open letter to Governor Cuomo on Huffington Post, Governor Cuomo’s opposition to medical cannabis is hypocritical in light of his support for decriminalizing public view cannabis possession. 

We expect Sen. Diane Savino (who is also an IDC member) and Assemb. Richard Gottfried to introduce a new bill imminently, but face a tough fight this session to win Senate passage and Governor Cuomo’s support. In the meantime, if I give my mother a joint to ease her chronic pain, that would be “criminal sale of marihuana in the fifth degree,” which is also punishable by up to three months in jail and a fine of up to $500.

When the Subject Is Hemp

Finally, there is the issue of hemp (also known as “industrial hemp”), a variety of cannabis that is grown for seed, oil and fiber and contains very low levels of tetrahydrocannibinol (also known as THC, the principal psychoactive compound in cannabis). During the 1700s, subsidies and bounties were granted in New York, New Jersey and other states to encourage hemp cultivation and the manufacturing of hemp fiber and canvas. In 2009, the Chenango County Board of Supervisors in central New York passed a resolution calling on state and federal legislators to permit hemp production, which would be an ecological and economic stimulus and an alternative to hydraulic fracturing for natural gas in recession battered upstate New York.

Eight states have distinguished hemp from cannabis and removed barriers to its production. Three states have passed bills creating commissions or authorizing research. Nine states have passed hemp resolutions. Six states have passed hemp study bills. And on the national level, the National Conference of State Legislatures, the National Association of State Departments of Agriculture, the National Grange and the National Farmers Union have all passed resolutions in support of hemp cultivation and production.  

However, federal law doesn’t distinguish between hemp plants and psychoactive cannabis plants; both are Schedule I controlled substances. Almost every other industrialized country (including Canada, where hemp cultivation has been legal since 1998) does.  Fortunately, Congress is finally seriously considering distinguishing hemp and cannabis with the introduction of the Industrial Hemp Farming Act of 2013, H.R. 525/S. 359, which is co-sponsored by Senate Minority Leader Mitch McConnell (R-KY). 

New York City Mayor Fiorello La Guardia was fiercely opposed to the federal 1937 Marijuana Tax Act that taxed and effectively prohibited the sale and cultivation of cannabis nationwide. In 1939, Mayor La Guardia appointed a committee to investigate the sociology and science of cannabis use, and in 1944, the La Guardia Committee issued a report (which was prepared by the New York Academy of Medicine) that thoroughly refuted the Federal Bureau of Narcotics’ propaganda about cannabis use. THAT was progressive leadership on cannabis policy.

In the spirit of Fiorello La Guardia, New York State must: (1) repeal all criminal and civil penalties for adult possession of an ounce or less of cannabis–no arrests, no tickets and no fines; (2) enact a medical cannabis program that allows certified patients to possess a reasonable amount of medicine and allows those with physical, financial or transportation hardships to cultivate their own medicine; and (3) distinguish industrial hemp from psychoactive cannabis and remove barriers to its production.

In the name of science, reason, justice, compassion and love, we must reform our state and local cannabis policies. If now is not the time to apply our state motto of “Excelsior” (Latin for “ever upward”) to our misguided approach to cannabis, then when?


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