Blog

By Jill K. Sanders, Esq.

New York is often considered one of the most liberal states in the United States. Yet in 2019, it still has laws prohibiting the possession of marijuana. New York’s governor has proposed changes to the state’s laws which may take place sooner rather than later.

The Current Marijuana Laws in New York

Possession and distribution of marijuana for recreational use are currently illegal in New York. The laws against possession and sale are located in Penal Law Article 221. However, medical cannabis is legal in New York under Public Health Law Article 33, Title 5-A. Possession of a small amount has been de-criminalized in New York since the 1970s, punishable only as a violation and not a crime.

In addition to New York’s laws, it is a federal crime to possess, buy, or sell marijuana. Current federal drug laws are contained in the Controlled Substances Act, 21 U.S.C. ch. 13 §§ 801 et seq. As a Schedule I substance, marijuana is considered to have a high potential for abuse, to have no accepted medical use, and to not be safe for use.

In recent years, criminalization of cannabis has largely been a matter of enforcement policies. Some prosecutors won’t even charge simple possession if there is no other criminal charge associated. Rather, many prosecutors have chosen to focus their efforts on penalizing those selling cannabis.

Research on Cannabis

In January 2018, Governor Cuomo directed the Department of Health to launch a multi-agency study to review the potential impact of regulated cannabis in New York. The study, issued in July 2018, concluded that the positive impact of a regulated program outweighs the potential negative aspects.

“The positive effects of a regulated marijuana market in NYS outweigh the potential negative impacts. Areas that may be a cause for concern can be mitigated with regulation and proper use of public education that is tailored to address key populations. Incorporating proper metrics and indicators will ensure rigorous and ongoing evaluation.”

New York State Department of Health 2018 report

Yet there are those who warn of the dangers to cannabis usage. In a January 2019 article in The New Yorker, the author pointed out a difference between de-criminalizing marijuana and promoting its use. The evidence of the benefits of cannabis use are limited. And there are no significant studies on its health effects, whether good or bad. Further, the dose and the way cannabis is ingested haven’t been sufficiently studied. Moreover, there is a concern regarding a link between heavy marijuana use and mental illness, particularly episodes of psychosis. 

Despite these concerns, as of January 2019, ten states in the US have legalized recreational use. Another thirty-three states permit medical marijuana use. Other states also permit the use of CBD, a non-psychoactive substance from the cannabis plant. In 2018, Canada legalized marijuana use on the federal level, and Mexico’s Supreme Court ruled that prohibiting recreational use is unconstitutional.

Proposed Changes to New York’s Laws

New York’s governor has proposed a regulated cannabis program for adults ages 21 and over. This would de-criminalize the possession of marijuana for recreational use. Further, it would provide for the sealing of prior marijuana-related criminal convictions. The program is intended to:

• Reduce impacts of criminalization affecting communities of color.
• Implement quality control and consumer protections to safeguard public health.
• Restrict access to anyone under 21.
• Generate approximately $300 million in tax revenue and create jobs.

Why Make Changes?

Even minor marijuana convictions may sometimes come up on criminal background checks. This may result in the loss of employment opportunities. Many persons arrested for possession are in their teens or 20s, and a conviction may have consequences that last for the rest of their lives.

Additionally, if marijuana were no longer illegal, there may be fewer encounters between police and drivers. Traffic stops are one way officers search for evidence of more serious crimes, such as illegal drugs or guns. This may make police safer in the performance of their duties. However, this may also mean that police are less likely to uncover more serious offenses.

Finally, non-citizens are also subject to removal proceedings (i.e., deportation) based on marijuana convictions. Because of backlogs in immigration courts, a non-citizen may spend months or years in detention for an offense that would otherwise result in no jail time. Even with a pardon, an arrest for a marijuana offense can result in deportation.

References:

• Penal Law Article 221.
• Public Health Law Article 33, Title 5-A.
• 21 U.S.C. ch. 13 §§ 801 et seq.
• NYS Department of Health, Assessment of the Potential Impact of Regulated Marijuana in New York State, July 2018. Available at: https://www.health.ny.gov/regulations/regulated_marijuana/docs/marijuana_legalization_impact_assessment.pdf (last accessed February 1, 2019).
• Malcolm Gladwell, “Is Marijuana as Safe as We Think?,” The New Yorker, January 14, 2019. Available at: https://www.newyorker.com/magazine/2019/01/14/is-marijuana-as-safe-as-we-think (last accessed February 1, 2019).
• Jeremy Berke and Skye Gould, “This map shows every US state where pot is legal,” Business Insider, January 4, 2019. https://www.businessinsider.com/legal-marijuana-states-2018-1 (last accessed February 1, 2019).
• New York State Governor, 2019 State of the State and Budget Proposals: FY 2020 Executive Budget – Legalizing Adult Use Cannabis. https://www.ny.gov/2019-justice-agenda/2019-justice-agenda#marijuana (last accessed February 1, 2019).