A New York senator has launched a bid to decriminalize all low-level drug possession in the state. If his bill becomes law, it would end arrests and jail time for possessing smaller quantities—instead, people caught with drugs would face a fine, which would be waived if they get a “needs screening.” This kind of law is already in place in Oregon. It could have a major impact in a state the size of New York.
Senate Bill 2340, introduced January 20 by state Senator Gustavo Rivera (D), would apply to all controlled substances. It would eliminate the lowest-level drug charge in New York: drug possession in the seventh degree, a Class A misdemeanor. The charge currently applies to under a half ounce of heroin or opioids, or under 50 milligrams of PCP, 500 milligrams of cocaine, 1 gram of ketamine or 28 grams of GHB. It’s punishable by up to one year in prison.
Removing arrests, jail or prison as potential penalties, the bill would instead make low-level possession a civil violation, subject to a $50 fine. But instead of paying the fine, you could get a “needs screening,” offered to try to help you find mental health or substance use disorder treatment, or help with finding a job, housing or food. The fine would be waived if you get an assessment within 45 days of your ticket, and no one could arrest you for not paying the fine.
SB2340 would also repeal two other laws in New York: one that makes it a crime to inject someone else with drugs, even with their consent; and another that makes everyone present liable for a drug possession charge if drugs are found in a car or in a room. Prior low-level possession conviction and arrest records would be automatically expunged, and anyone currently on probation, parole or pretrial release would have the same protections.
Significantly, people with drug convictions, people formerly incarcerated and others directly impacted by the drug war would be included on the task force.
The bill would also create a task force to meet and study the best ways to “[treat] substance use disorder as a disease, rather than a criminal behavior.” Its 21 members would include state-level commissioners and others appointed by the governor and legislature, as well as experts in mental health and substance use disorder treatment, criminal justice and law, public health and harm reduction—among other specialties. Significantly, people with drug convictions, people formerly incarcerated and others directly impacted by the drug war would also be included.
The task force would help determine the personal-use possession thresholds for each kind of drug that would be reduced to a civil violation under the law. Such thresholds would be critical to how much protection people get in practice; advocates have condemned the thresholds in British Colombia’s imminent decriminalization model, for example, for being too low. The New York task force members with lived experience, or experience of working with people who use drugs, could—in theory—push for thresholds that accurately reflect what people consume on a regular basis.
The task force could also recommend ways to reduce family separations, immigration penalties or other consequences of drug prohibition, and encourage treatment. It would issue a report after one year.
Of course, any form of limited decriminalization is only an incremental change. The government would still be deciding how much of a drug you could possess; arrests and prosecutions for other drug charges would continue; and decriminalization does not regulate and safeguard a dangerously adulterated drug supply. But New York statistics, from the Data Collaborative for Justice at John Jay College, can help us assess the potential impact of SB2340.
There were nearly 5,000 misdemeanor drug possession convictions in 2019.
Out of 2.57 million misdemeanor convictions in the state from 1980-2019, drug possession charges constituted the largest single category, at 27 percent—over 700,000 such convictions. Misdemeanor drug possession convictions peaked at just over 32,000 in 2000, but dropped 84 percent over the next two decades. Yet there were still nearly 5,000 misdemeanor drug possession convictions in 2019. And these numbers don’t tell us how many more people were arrested and jailed, but didn’t get convicted.
Unsurprisingly, these low-level drug convictions are vastly disproportionate by race. Between 1990-2019, about 42 percent of them were of Black people and 33 percent of Latinx people—despite the fact that these two demographics make up, respectively, just 17.6 percent and 19.5 percent of the population. White people are arrested and convicted at far lower rates; rates of illicit drug use do not differ significantly among these three demographics.
New York is one of several states with efforts to decriminalize drug possession. Massachusetts lawmakers just filed a similar bill, and Washington lawmakers may consider it as they meet a deadline to reform their possession laws. Washington, DC activists are conducting their own campaign to decriminalize in the district.
All are following in the footsteps of Oregon, where voters in 2020 approved Measure 110, to decriminalize drug possession and commit tax money to expanding harm reduction, mental health and social services for people who use drugs. Because of that law, Oregon has so far been able to fund hundreds of different providers serving tens of thousands of people. Monthly drug arrests dropped by 65 percent after it took effect in 2021.
Photograph by Ernesto Pletsch via Flickr/Creative Commons 2.0.