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New York Lawmakers Pass Marijuana Decriminalization Legislation, Reducing Penalties for Low-Level Possession and Attempting to Address the Pressing Need for Restorative Justice

In New York, politicians typically favor incremental action rather than sweeping legislation.  This may explain the Legislature’s failure to legalize adult recreational marijuana this term.  However, the legislators have passed a bill, A08420, which amends New York penal law and criminal procedure law as they relate to criminal charges stemming from possession of small amounts of marijuana.  The bill reclassifies possession of small amounts of marijuana as a violation, rather than a crime.  By way of comparison, negligent trespass onto land and jaywalking are also violations.  Under the bill, the fine for possession of less than one ounce of marijuana or marijuana‑related products is $50.  The bill caps the fine for possession of between one and two ounces of marijuana or marijuana‑related products at $200.  Critically, the bill also provides for the automatic expungement of marijuana‑possession convictions.  The bill tasks the Office of Court Administration and the Division of Criminal Justice Services with the development of an affirmative information campaign to widely disseminate to the public information related to expungement for prior marijuana convictions.

In comparison to the legalization of adult recreational marijuana, the bill may seem like pretty small beer.  But it is not.  The sheer number of people affected coupled with the dire consequences of arrests for possession of only a small amount of marijuana doubtless drove legislative action.  The decriminalization of the possession of marijuana is one step in solving the social inequities and injustices felt by those with convictions for low-level possession.

As discussed in a previously Legally Grown blog post, the District Attorneys for Manhattan and Albany County recently wrote an excoriating piece urging the legalization of adult recreational marijuana:

“In the last two decades alone, more than 900,000 New Yorkers have been arrested for marijuana possession.  These arrests reflect rampant discrimination, specifically against New Yorkers of color.  In New York, black people are 10 times more likely than white people to be arrested for marijuana possession, with 80% of all statewide marijuana arrests targeting black and Latino residents.  This staggering disparity in arrests exists despite similar rates of use across demographics.”

Even though the District Attorney for Manhattan has adopted a policy of declining to prosecute cases of alleged possession of small amounts of marijuana, at least anecdotal evidence suggests that there are areas of New York City in which law enforcement has not received the memo.  And an arrest, even without a charge, can result in twenty‑four hours in custody.  According to the Drug Policy Alliance:

“New Yorkers who are arrested face immediate and long-term consequences that make it difficult to get and keep a job, maintain a professional license, obtain educational loans, secure housing, or even keep custody of a child or adopt.”

Hopefully, expungement will provide a remedy for at least some of the concerns social justice advocates, like the Drug Policy Alliance, have raised.

While there was consensus on the decriminalization of marijuana, lawmakers could not pass revisions to New York’s medical marijuana laws.  While medical cannabis is legal in New York, it is not affordable or accessible.  For example, a representative of the only active dispensary in the New York City area advised me that physicians typically charge about $100 to $300 for medical cannabis.  In contrast, the street price of an ounce of marijuana is reportedly about ten dollars.  Additionally, decriminalization only addresses the social inequities brought by criminal penalties for marijuana possession.  It fails to address economic considerations regarding the legalization of marijuana for adult recreational use.  There are concerns that without effective legislation, the adult recreational marijuana market will be closed to entrepreneurs, particularly those of minority status.  Until the legislature can resolve these issues, whether through an omnibus bill or through continued piecemeal fashion, it is perhaps best that adult recreational marijuana is off the table for now.  But the current bill’s focus on restorative justice can only be a good thing.

If you have any questions about this post or any other related matters, please feel free to contact our Cannabis Law Practice Group.