New York’s Two Marijuana Legalization Paths: Will Lawmakers Get It Right?

    After two years of false starts, could 2021 be the year that New York finally legalizes marijuana? All the stars seem to be aligned: Governor Cuomo and leaders in the legislature have endorsed legalization, voters elected a historically progressive state legislature, and neighboring New Jersey voted for legalization last November.

    The question for New York, then, is no longer whether legalization should occur, but how it should occur.

    One critical aspect of that question is what should be done with the revenues generated by the new industry. State legislative leaders and drug policy advocacy groups argue that any legalization bill must reinvest tax revenues from legal marijuana in communities that have borne the brunt of the drug war. The governor’s office is instead proposing a version of legalization that would give the executive wide-ranging discretion over the new revenues.

    The “gold standard” for legalization, according to Melissa Moore, New York state director for the Drug Policy Alliance*, is the Marijuana Regulation and Taxation Act (MRTA), a bill that has been pending in the legislature since 2013.

    The MRTA, sponsored by state Senator Liz Krueger (D-Manhattan) and Assembly Majority Leader Crystal Peoples-Stokes (D-Buffalo) would specifically earmark half of marijuana tax revenues for reinvestment in communities harmed by the criminalization of marijuana; a quarter for new spending on public education; and a quarter for treatment and harm reduction services, which have been facing steep cuts during the pandemic.

    “It is long past time for New York State to catch up with our neighbors and legalize, tax, and regulate adult-use marijuana,” Sen. Krueger told Filter. “Allowing adult personal use, with appropriate regulation and taxation, will end the heavily racialized enforcement that disproportionately impacts African American and Latino New Yorkers, locking them out of jobs, housing, and education, and feeding the prison pipeline.”

    Gov. Cuomo has put forward a separate plan for legalization, however: the Cannabis Regulation and Taxation Act, which would give his office significant discretion over the revenues generated. Moore said that this discretion makes Krueger’s bill preferable to Cuomo’s.

    “The governor’s proposal has included some of the language from the MRTA about what the community grants reinvestment fund could be used for, but it hasn’t actually had the lockbox guarantee around funds going to communities,” Moore said. “It’s said ‘funds can be used for these things,’ or ‘may be used for these things,’ or ‘any other purpose as determined by the director of budget,’ which renders everything that’s come before it void, basically.”

    “As always, the devil is in the details,” Krueger said, noting the importance of ensuring that “sufficient resources are directed to those communities most directly impacted by the failed policies of the so-called ‘War on Drugs.’”

    “One of the bright lines has always been having dedicated community reinvestment.”

    Marijuana legalization models in other states have been criticized for shutting out people of color and others who have borne the brunt of the drug war out of the industry, while allowing windfalls to flow into the coffers of well-capitalized investors.

    “One of the bright lines has always been having dedicated community reinvestment, and having a truly viable social equity program for people directly impacted [by marijuana criminalization] who want to participate in the industry,” Moore said.

    The MRTA would offer priority in obtaining commercial marijuana licenses to individuals and communities adversely affected by criminalization in the past, and would create a small-business incubator program, including low- or zero-interest loans, for impacted people seeking to enter the legal market. Similar provisions in Cuomo’s bill are far more limited and smaller-scale.


    Key Differences Around Criminalization

    The two bills also differ on several matters of criminal law. While the MRTA has a provision that the odor of marijuana can’t be used as a basis to stop or search somebody, no similar provision exists in the Governor’s proposal.

    “Odor of marijuana has kinda become the go-to reason for stopping and frisking people.”

    Eli Northrup, a public defender, said that this difference is significant: “Stop and frisk was outlawed, but [odor of marijuana] has kinda become the go-to reason for stopping and frisking people,” he told Filter.

    Though the governor’s proposal would legalize possession of marijuana, its odor could still be used as a reason to search a person if police claimed to believe that they had acquired it illegally, or were in possession of an illegal quantity. Under the MRTA, odor would not stand up in state court as a justification for such a search.

    Peggy Hererra, a resident of Jamaica, Queens, said that the New York Police Department used odor of marijuana as a pretext to search her son Justin’s car in 2018. The officers didn’t find any marijuana but did find a pocket knife, leading to her son, who was on probation at the time, being remanded to jail for three weeks. The officers’ claim of smelling marijuana remained on his record even though none was found.

    “I was mad because I know they use [marijuana] to criminalize our community,” Hererra told Filter. The population of Jamaica, Queens is 62 percent Black and 15 percent Hispanic, demographic groups disproportionately arrested on marijuana charges.

    Northrup also noted last week that Cuomo’s plan would increase the penalty for selling marijuana to an individual aged between 18 and 21 from a misdemeanor to felony offense, punishable by up to 2.5 years’ incarceration. While sale of marijuana to a person under 21 would remain illegal under the MRTA, the criminal penalty would be a misdemeanor, not a felony. Extreme racial disparities in arrests for marijuana sales persist in New York.

    A further difference between the MRTA and Cuomo’s plan relates to expungement of marijuana convictions from New Yorkers’ criminal records. The MRTA would automatically expunge marijuana convictions, but the governor’s proposal would require individuals to apply for expungement themselves, a byzantine process that New Yorkers often have difficulty navigating.

    Governor Cuomo’s office did not respond to Filter’s request for comment.


    Getting Through to the Legislature

    Not all legislators are on board with legalization in either form. “I believe there is still insufficient research in the areas of health, safety and regulation to support the legalization of recreational marijuana” State Senator Patrick Gallivan (R-Erie), ranking member of the Senate Health Committee, told Filter. But with new supermajorities in both houses of the legislature, Democrats likely have the votes to pass legalization over Republican objections.

    One obstacle to passage of the MRTA specifically, though, is that not all legislators who support legalization are aware of the differences between the MRTA and the Governor’s plan, said Jawanza Williams, director of organizing at VOCAL-NY.

    “Most New Yorkers, most progressives in particular, want to see a bill that’s like the MRTA, but they have to be aware of it,” he told Filter. “They have to understand the distinctions between Governor Cuomo’s CRTA and our MRTA.”

    To that end, Williams and other MRTA supporters and sponsors have been holding legislative briefings laying out the differences between the two bills, including one on January 15 that Williams estimated was attended by 70 legislators or their staffers.

    “There’s been a lot of education about it,” said Northrup, who was at the briefing. “Hopefully it’s coming to a point where it’s no longer feasible to not act on this.”

    “I haven’t signed on to Senator Krueger’s bill, but I am certainly learning towards doing so.”

    Freshman Senator Jeremy Cooney (D-Rochester) also attended that day. He included marijuana legalization as part of his campaign platform, and flipped his seat last November, defeating a Republican whose platform did not mention marijuana.

    Sen. Cooney told Filter that he thinks that the MRTA is “an excellent starting point.”

    “I haven’t signed on to Senator Krueger’s bill, but I am certainly learning towards doing so,” he said. He added that he hopes legalization will include provisions supporting marijuana businesses in disadvantaged communities, as well as support for farmers in rural areas surrounding his district who wish to grow marijuana.

    “We have challenges with job creation in upstate New York, so with legalization of recreational marijuana, not only are we righting that wrong from a social justice standpoint, we are economically empowering populations who have not had access to good paying jobs,” he said. Rochester has the third highest poverty rate of any US metro area.

    The MRTA’s supporters are planning an aggressive lobbying campaign, which will be virtual due to the pandemic. Williams said that dozens of organizers and hundreds of volunteers have already bombarded Cuomo with emails supporting the MRTA, and are planning to step up their efforts as the New York’s January-June legislative session gets into full swing.

    “Legalizing marijuana needs to be about the community as a whole.”

    When asked if the coalition supporting the MRTA might compromise on some of its demands to ensure speedly legalization, Williams reiterated the importance of using legalization as a way to address past harms of the drug war. Legalization, he said, must “create a pathway” for people punished for marijuana possession or sale to “be able to participate in this now above-ground legalized market.”

    “Legalizing marijuana needs to be about the community as a whole,” he added. “We have a responsibility to people to not just forget about what happened.”

    While New York will be far from the first state to legalize marijuana, Moore said that she hoped it could blaze a new trail. “Although New York is behind 15 other states in legalizing adult use, including such progressive luminaries as South Dakota and Montana, we still have the opportunity to actually set the national model and be leaders in terms of getting social equity and community reinvestment into our legalization program from the jump, which nowhere else has adequately done,” she said.

    If and when New York does legalize, Peggy Hererra hopes to see her neighborhood benefit from it.

    “I know that they use that all the time to build a case against our families. Now they’re trying to make money off of it, so I want to see what they’re going to do for our community,” she said. “Once it’s legalized, the communities that have been most harmed by the arrests, we should be the first ones to benefit from the revenue.”  



    DPA previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.

    Photograph by Plantlady223 via Wikimedia Commons/Creative Commons 4.0

    • Sam is a journalist living in New York City. His reporting focuses on electoral politics, labor and criminal justice. His writing has appeared in The Appeal, Jacobin, THE CITY and New York Focus.

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