A third way on marijuana legalization

Before his recent push to legalize recreational marijuana, Gov. Andrew Cuomo commissioned state agencies to jointly assess the various potential risks and benefits of legalization. The resulting report—released in July 2018—has served as a central basis for Cuomo’s rationale behind why marijuana should be legal and why we must move very quickly to accomplish this change in law. Specifically, drawing on the report’s findings, Cuomo’s 2019 State of the State Address articulated the main purpose behind legalization as being to “(s)top the disproportionate criminal impact on communities of color.”  

That is a worthwhile and logical pursuit, but the state does not need to fully legalize recreational marijuana in order to accomplish it. 

Many New Yorkers seem to misunderstand some important details about this issue. First, it has surprised me how often in recent months I have heard people say that their sense of urgency around legalization comes from the injustice of our state prisons being filled with people serving long sentences for “just possessing a little bit of pot.” The basis of this argument is just not true.

Perhaps I should not have been surprised at this misconception, since many prominent national leaders have erroneously argued the same thing. For instance, last year former House Speaker John Boehner, a Republican, lamented that “we have literally filled up our jails with people who … frankly do not belong there,” and who “are there for possession of small amounts of cannabis.” Similarly, Sen. Brian Schatz, a Democrat from Hawaii, tweeted: “More than 2 million in jail, mostly black and brown, many for holding a small amount of marijuana.” An article in Vox debunked these claims, and the Washington Post’s Fact Checker awarded Boehner “Four Pinocchios” for his statement. 

When Sen. Elizabeth Warren of Massachusetts—now a Democratic presidential candidate—said last year that we have “more people locked up for low-level offenses on marijuana than for all violent crimes in this country,” her office afterwards admitted the error of that statement when contacted by the Washington Post.  

To be clear, some states are harsher than others when it comes to criminal penalties for marijuana. But New York has long been among the lenient ones. Since 1979, the possession of up to 25 grams of marijuana has been classified as a “violation” and is punishable by a $100 fine (the amount of the fine increases if there are recent previous convictions). For some context, pictured above is 25 grams of marijuana, which is enough to roll 40 to 60 rather hefty marijuana joints. Importantly, a “violation” is not considered a “crime,” and therefore a conviction for possessing this amount of marijuana does not result in a criminal conviction nor the need to admit to a “criminal record” when filling out job applications.

Even marijuana dealers cannot be charged with a felony in New York if they are selling less than 25 grams of marijuana. And those in possession of pot cannot be charged with a felony unless they have at least half a pound of it, which is enough for 400 to 600 joints.

Some people are sitting in state prison in New York for marijuana-related convictions, but they are not there for merely possessing small amounts of it. When I worked for a time as a Narcotics Division prosecutor in the Bronx, we often had little interest in pursuing felony marijuana charges unless something much larger was driving it—for instance, when the marijuana dealer was part of a violent gang or a large, organized drug operation. Also, on the rare occasion that I had someone plead guilty to a felony marijuana charge (which would result in the state prison records indicating that someone was serving time for marijuana), it was because the defendant’s attorney wanted the defendant to be able to plead to a marijuana charge rather than a “more serious” crime with which the client was charged.

Now, while the current illegal status of marijuana is not a big driver of the state prison population, it has had a negative and disparate impact on low-income and minority communities. Specifically, those communities have experienced a large—and disproportionate—number of arrests for small amounts of marijuana. These arrests often force people to spend up to 24 hours in a local jail to face an arraignment judge. Additionally, when poorer defendants can’t afford a fine for marijuana possession or other court fees, they sometimes skip a subsequent court date and have a bench warrant issued for their arrest. This kind of dynamic—where poverty drives and escalates the problems people face in dealing with the criminal justice system—is rightly criticized and should be addressed.

Further, there is somewhat of a loophole in Penal Law Section 221.10 of the state code that makes it rather easy for law enforcement to upgrade marijuana possession from a “violation” to a misdemeanor if the marijuana is “open to public view.” This loophole often plays out in stop-and-frisk encounters and other situations where police are patrolling low-income neighborhoods.     

Yet to fix these problematic effects stemming from the current marijuana laws, we do not need to fully legalize marijuana. Rather, we can decriminalize the possession of small amounts of marijuana, and ameliorate the consequences of past convictions.

Specifically, the following plan would fulfill the main goal sought by Cuomo:

• repeal Section 221.05 of the penal law (so no one can be charged or arrested for possessing less than 25 grams of marijuana),
• repeal Section 221.10(1) of the penal law (to remove the “open to public view” loophole),
• expunge and seal all criminal records relating to convictions for misdemeanor marijuana possession,
• dismiss and expunge all outstanding fees and bench warrants based on low-level marijuana possession; and
• prohibit New York’s probation and parole departments from violating defendants based on the use or low-level possession of marijuana (five former New York City probation commissioners called for this same reform last year).

Essentially, parts 1 and 2 of the above plan would enhance and codify what has already started happening in New York City. Last year, the New York Police Department changed policies to significantly reduce the number of situations where officers would make marijuana arrest, and the Brooklyn district attorney’s office has largely stopped prosecuting low-level marijuana offenses, leading to a 98 percent reduction in such cases as of last month. 

The more limited plan described above should be a much easier sell to opponents of full-scale legalization, especially because there is actually a large difference between decriminalization and full legalization. With full legalization, we immediately enter a period that many are already calling a “Green Gold Rush .” Countless billions of dollars will pour in (like the recent $4 billion investment from Constellation Brands) to finance innovation, new products, marketing and distribution. People with PhDs in psychology will be hired to figure out what kind of product packaging and marketing campaigns will be most likely to increase customers and usage. Local courses will be offered on how to become a cannabis sommelier. Each month the local dispensary will feature new marijuana products like flavored drinks, dissolvable powders, inhalable formulations and desserts.

Two years ago, I visited a marijuana dispensary in Boulder, Colo. It looked like something between a high-end candy store and the lobby of a spa. Beautiful, socially-skilled people were behind the counters, happily explaining the near-endless variety of choices and the resulting high from each. 

Perhaps with many states now legalizing marijuana, we will eventually need to follow suit. But there is also a lot to be gained from first waiting and learning from the experience of other states. A recent study found that a majority of high school seniors believe that marijuana is safe. Yet every month—including this month—we are learning through new research that the answer is likely to be otherwise. 

At the very least, there is a wrong way and a right way to fully legalize marijuana. The right way would include making sure that kids cannot easily confuse marijuana products with candy, like what recently happened in Florida. The right way would include pairing legalization with proper public education about the risks and dangers, such as those related to impaired driving and workplace accidents. How long should your surgeon wait after marijuana use to operate? How about your child’s school bus driver?

There are valid reasons why numerous health care groups and public safety professionals are advocating caution. Just as there are big misconceptions around the current impact of marijuana laws, there are numerous unknowns, risks and best practices that we have yet to figure out with regard to full marijuana legalization.  

We can address the most time-sensitive concerns behind legalization—including the disparate effects of arrests on minority communities—by effectively decriminalizing the possession of small amounts of pot and expunging old convictions. We can also immediately look to make medicinal marijuana more accessible to those who need it. But there is little to be gained—and much risk—in speeding along full legalization.

We do not need to be the 11th state to fully legalize marijuana. The more responsible course would be to be the 35th state, as long as we commit to learning from the 34 states that come before us. 

Or to quote a much less-evolved Andrew Cuomo (i.e., from 2017): “There’s two sides to the argument. But, I as of this date, I am unconvinced on recreational marijuana.”