New York Governor Andrew Cuomo yesterday signed a cannabis decriminalization and expungement statute, a sort of second prize following the state’s failure to pass legalization of adult use of cannabis in June. The bill takes effect in 30 days and provides just a violation (like a traffic ticket) for possession of up to two ounces of marijuana. The new law also sets up a procedure for those convicted of possession of small amounts of cannabis to seek expungement of their records. The fine for possession of less than an ounce will be $50, or $200 if you possess between one and two ounces.
Many were disappointed when the Democrat-controlled legislature failed to complete legalization with its Democrat Governor. Key legislators blamed the Governor for his apparent unwillingness to be more hands on in pressuring some Senators to support the bill. Cuomo, for his part, said that if the majority support was not there, it was not for him to push. Much of the disagreement related to how far to take embedding social justice efforts into the law and how to use tax revenues to help communities long impacted negatively by the war on drugs. Many hope there will be an opportunity to revisit the issue when the legislature next convenes in January.
As the fourth largest state with 19 million people, New York legalizing adult use would be a major step for the industry. New Jersey also failed to pass adult use legislation this year and intends to put it up for a voter referendum in 2020. New York law does not permit referendums short of a Constitutional convention. Empire State voters decide on whether to hold a convention every 20 years, and voted down the effort in 2017. The industry was pleased when Illinois, the sixth largest US state with almost 13 million people, passed adult use legalization last month, the 11th state to fully legalize cannabis.
Some bad news for those waiting for New York to legalize adult-use cannabis. Legislation aimed at legalizing adult-use cannabis failed on Wednesday (June 19), as state leaders in New York could not agree on certain key components of the proposed Marijuana Regulation and Taxation Act (the “MRTA”).
One of the biggest points of contention in the MRTA was how the state would allocate the projected $300 million in annual tax revenue. In particular, some legislators argued that the funds should be allocated towards communities negatively impacted by the war on drugs, while New York Governor Andrew Cuomo argued that the executive branch – which he leads – should have more control over how that money is spent.
In addition, lawmakers also struggled to reach consensus on whether past cannabis convictions should be expunged and whether cities and counties would be expected to opt in to cannabis sales or, alternately, be able to opt out.
While adult-use maybe be off the table for now, on June 21, 2019, the New York Assembly and Senate approved a bill (A08420) to further decriminalize possession of cannabis and automatically expunge many low-level cannabis convictions.
- The penalty for possessing an ounce of cannabis (possession in the second degree) will be reduced to a $50 fine. Current law imposes a $100 fine, provided that the individual does not have a prior cannabis-related offense within the past three years.
- The limit for cannabis possession in the first degree will be increased from 25 grams to one ounce, and the penalty will be reduced from a misdemeanor to a $200 fine. Currently, first-degree cannabis possession can result in up to 90 days in jail and/or a fine of up to $500.
- Cannabis in “public view” will no longer be a misdemeanor offense.
- Cannabis possession arrests and convictions for amounts decriminalized under the bill will be automatically expunged, and will apply to convictions prior to decriminalization.
A08420 will take effect and become law pending signature by Governor Cuomo.
Senate Minority Leader Chuck Schumer has officially joined a rapidly growing number of US legislators calling for the federal decriminalization of cannabis. Last Friday, he tweeted: “THREAD: It’s official. Today, I am formally announcing my plan to decriminalize marijuana at the federal level. It’s time we allow states, once and for all, to have the power to decide what works best for them.” Then later in the day he tweeted, “The time has come to decriminalize marijuana. My thinking – as well as the general population’s views – on the issue has evolved, and so I believe there’s no better time than the present to get this done.”
To be clear, Schumer is not suggesting full legalization, merely decriminalization. This could mean that while cannabis would still be illegal under federal law, possession would bring only a fine or the like, rather than jail. In a video attached to his tweet, he talked about how people of color have been disproportionately affected by incarceration for possession of small amounts of cannabis.
This follows an apparent historic agreement a week ago between President Trump and Sen. Cory Gardner (R-CO) to move forward with legislation that would protect states’ rights with regard to cannabis. This could mean a permanent ban on federal enforcement of those complying with state cannabis laws. Many hope such a bill could address the challenges with banking in the industry, as well as IRS Code Section 280E, which prohibits the deductibility of business expenses of those in cannabis.
In addition, Senate Majority Leader Mitch McConnell has introduced a bill to legalize industrial hemp. Finally, there are three pending bills in Congress which would fully deschedule and legalize cannabis nationwide, much like Canada appears to be on the verge of doing. It does indeed appear that things are moving rather quickly in the direction of dramatically improved federally legal status of cannabis.
Last month New Hampshire became the 22nd US state to eliminate jail sentences for marijuana possession. The states that have decriminalized now are: Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, Rhode Island and Vermont, in addition to the 8 states (plus DC) that have legalized adult use of cannabis (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington).
Decriminalizing is important as it begins to dismantle the war on drugs to the extent it applies to marijuana. New Hampshire previously imposed both a fine and up to a one year prison sentence for possession of even small amounts. Now it’s a $100 “traffic ticket” for possession of up to 3/4 of an ounce of cannabis flowers or five grams of hashish. Marijuana convictions have burdened casual users, preventing them from obtaining student loans or even employment.
Of course marijuana possession remains a federal crime which can subject you to serious jail time. Here’s an idea: instead of pushing a big rock uphill in the Congress to fully legalize marijuana on a federal level, maybe we should start with a federal decriminalization bill. Might that have a better chance of passage than the multiple bills currently pending to legalize? Maybe.