NY Marijuana Decriminalization Bill Has Limited Impact for Communities of Color

Marijuana plant (Shutterstock) There’s a lot to applaud about the recent marijuana decriminalization bill approved by the New York State Legislature. The new marijuana law expunges prior marijuana arrests and convictions, clearing past offenses for nearly a million New Yorkers. However, the root causes of those marijuana arrests are still in effect. Black and Brown communities disproportionately affected by marijuana prosecutions cannot expect the same benefits as their white counterparts.

New York’s decriminalization bill seemed like a consolation prize that came out of nowhere after a failed recreational cannabis measure. State Senator Jamaal Bailey and Assemblywoman Crystal Peoples-Stokes put the bill together quickly to stop the over-prosecution of marijuana offenses in communities of color. African Americans are eight times more likely to be arrested on cannabis charges in New York City, and 74 times more likely to be arrested for marijuana in upstate New York."These convictions of low-level marijuana crimes actually prevented people from getting jobs," Peoples-Stokes told the Buffalo News. "It prevented them from living in public housing, and it essentially forced them into a kind of lifestyle that unfortunately created recidivism." The full text of the New York marijuana decriminalization bill is a short four-page document. But the legalese language can be difficult to comprehend (it refers to cannabis as “marihuana”), so let’s break it down.

If you’re caught carrying less than an ounce of cannabis, it’s like a parking ticket; you get a simple $50 fine and the charge does not appear on any criminal database. Anything between one and two ounces is a fine of up to $200. If you’re not a regular user, two ounces is the equivalent of more than 50 joints, a volume that far exceeds common marijuana use or what someone would routinely carry. The bill defines cannabis as any “preparations, compounds, mixtures or substances containing marihuana.” So marijuana, oils, wax, shatter, or even infused brownies are subject to the same one-size-fits-all weight standard, whether they’re infused with 10 to 90 percent active ingredient. Edibles are commonly 10% THC. Some high-potency concentrate powders/oils are above 90% THC.

Smoking or consuming cannabis in public is now also reduced to a “violation” — a parking ticket -level charge less severe than its previous misdemeanor status.

But most significantly, past marijuana convictions are essentially erased if they involved less than two ounces. The law now says that “records of such arrest, prosecution and/or disposition shall be marked as expunged or shall be destroyed.”

This will all happen automatically, unlike many states where expungement requires lots of money and even multiple court appearances. The New York Office of Court Administration is directed to identify charges that meet the expungement criteria, and eliminate them with the click of a mouse button. However, all marijuana-related crimes will not disappear. If the incident involved a weapon, resisting arrest, or any additional charge, those will not be expunged. But the legislation will result in cleared marijuana charges for an estimated 900,000 New York state residents.

“That’s more than a lot of states have done,” Legal Aid Society staff attorney Emma Goodman told AM New York. “The problem is that it’s just getting rid of one very small amount of low-level offenses and it’s not actually legalizing marijuana…violations are still arrestable offenses in New York.” Therefore, police can still “stop and frisk” people if they think they smell marijuana, which could escalate into unrelated additional searches and charges. Predominantly Black and Brown communities are well aware of this phenomenon, and decriminalization is unlikely to deter law enforcement’s racially disproportionate prosecution of marijuana charges.

"We're not going to do anything differently," Delaware County sheriff Craig DuMond told the Lockport Union-Sun & Journal. Police organizations are not happy with this new law, and they have vowed they will still employ drug-sniffing dogs, probable cause searches, and all of their old tried-and-true tactics of the race-based drug war.“History has shown us that (when given discretion) the police choose to arrest people," said Kassandra Frederique, New York branch director for the Drug Policy Alliance. Only full legalization could stop police from using marijuana as probable cause to search and harass anyone they please, and that harassment will likely continue to skew unequally toward the African-American and Latinx population.

Another glaring weak spot to the decriminalization bill is that home cultivation of cannabis plants remains illegal. Possession of the leaves and buds of marijuana plants is no longer a misdemeanor, but possession of the plant itself is still a misdemeanor — carrying a possible year-long jail sentence and $1,000 fine. Marijuana activists suspect that corporate greed is behind these home-grow bans. The website Marijuana Moment obtained a secret memo to Governor Andrew Cuomo from the biggest emerging cannabis corporations urging him to not allow home cultivation as it might cut into their profits. These same corporations are notorious for not having people of color in leadership positions.

Ultimately, marijuana decriminalization is not the law yet. It doesn’t go into law until 30 days after Governor Cuomo signs it, which he has not yet done, but said he will.It’s certainly a cause for celebration that hundreds of thousands of Black and Brown people will see their previous marijuana charges go up in smoke. But there’s nothing in this law to prevent police from continuing to harass people of color when the cops claim they see or smell marijuana. Even if possessing marijuana is only punishable with a small fine, African American and Latinx people carrying cannabis should remain on high alert.

About the Author

Joe Kukura is a San Francisco freelance writer covering the intersection of cannabis policy and social justice for The North Star and SF Weekly. His work has previously appeared in Thrillist and the Daily Dot, and you can follow him on Twitter @ExercisingDrunk.