Cuomo pledges legal cannabis for Empire State in 2020 —but whither equity?

Posted on January 23rd, 2020 by Bill Weinberg and tagged , , , , , , , , .

New YorkThe new budget just released by New York's Gov. Andrew Cuomo includes his promised cannabis legalization measure. But activists in the Empire State will be watching closely to see if the proposed legislation delivers on his pledge to instate legalization in a way the corrects the social harms of prohibition.

New York state cannabis advocates were bitterly disappointed last year, when two rival legalization measures both failed to pass at the end of the Albany legislative session in June. One of those measures—that 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 a second year in a row, Cuomo has introduced a legalization measure in the state budget. In a Budget Outline released 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." 

The Outline 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, with oversight of medical marijuana transferred from the state Health Department, and hemp from the Department of Agriculture & Markets. 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 his State of the State speech. "For decades, communities of color were disproportionately affected by the unequal enforcement of marijuana laws," Cuomo prefaced his call for legalization in the address, according to The New York Times

And the Budget Outline reiterates Cuomo's call last year for a regional bloc of Northeast states that embrace legalization: "These efforts will be done in coordination with neighboring states Connecticut, New Jersey and Pennsylvania."

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."

Deja vu all over again?
Some cannabis boosters are bullish on 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 use of cash bail in favor of releasing arrestees on their "own recognizance," in an effort to reduce jail populations. The law took effect 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 decrim 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.

Tackling the racial disparity
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 Gotham, white folks use marijuana at a significantly higher rate than Black folks—and at a rate twice as high as Latinos: "In 2015-2016, an estimated 1.1 million New Yorkers used cannabis at least once during the last year. Nearly one quarter (24%) of White New Yorkers reported cannabis use, compared to 14% of Black and 12% of Latino New Yorkers."

Yet, as the Queens Daily Eagle reported last August, 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. The report, A Fair Approach to Marijuana, urged:  "We have a once-in-a-generation opportunity to get a historic issue right for future New Yorkers. Legal cannabis is coming to New York State. When it does, we must do all we can to make sure that happens in a way that is safe, takes the health of New York City residents into account, and above all, provides opportunity while righting historic wrongs."

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."

Robert Gangi, director of the Police Reform Organizing Project (PROP), told the Queens Daily Eagle that the "blatant" disparity in pot arrests and other low-level offenses comes down to disproportionate policing in communities of color.  "The reason is fundamentally where the police are deployed and what directions they’re given," Gangi said. "They are deployed primarily in low-income communities of color… and they're told to practice ‘broken windows’ policing.” 

"Broken windows" refers to the controversial policy first instated under Mayor Rudolph Giuliani in the 1990s, in which there is zero tolerance for small offenses on the dubious theory that this also leads to a reduction in big offenses. The policy has supposedly been disavowed by the de Blasio administration.  

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."

Parsing 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, he 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. 

It is telling that in New York City, the racial disparity in cannabis arrests mirrors the persistent disparities in subway fare evasion arrests. More than 85% of people arrested for fare evasion between April and June of 2019 were Black or Latino, the Daily Eagle reported last year. 

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.

Photo: Pexels via Cannabis Now

Cross-post to Cannabis Now

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