New York marijuana: What to know about decriminalization, criminal records, pot possession

David Robinson 

New York’s marijuana decriminalization legislation would expunge about 202,000 cannabis convictions through sweeping criminal-justice reforms targeting unjust drug busts.

The convictions for low-level pot possession would be expunged under the bill that passed last month after efforts to legalize recreational pot failed. It includes about 57,200 convictions outside of New York City, state data show.

Gov. Andrew Cuomo is expected to sign the legislation soon and prompt the push to atone for decades of racially biased enforcement of marijuana laws.

But the complex legal system overhaul involved remains short on details, such as how state court officials plan to create a method for automatically expunging criminal records, much less pay for it.

“It is still too early in the process. And at this point there is no word on any additional funds being allocated,” said Lucian Chalfen, a spokesman for the state court system.

What happens next?

New York’s effort comes after a similar one in California, which last year passed the first state law that sought to automate the process of expunging select cannabis convictions.

To understand the costs ahead for New York, consider California just approved spending about $13 million on its court system push to expunge about 200,000 criminal records tied to pot convictions, state officials said.

Yet while California is collecting taxes on legal weed sales to help offset its costs, New York’s recreational pot debate is shelved until next year.

Meanwhile, New York’s marijuana decriminalization bill would also reduce fines and penalties for possession of up to two ounces of pot and ban smoking it anywhere tobacco is prohibited.

Further, the bill turns low-level possession into a violation, as opposed to the current misdemeanor that can cause discrimination in housing, job and school applications.

Democratic lawmakers touted the bill as an incremental but historic moment in reaching their goal of legalizing marijuana use for adults.

“This legislation is marking a momentous first step in addressing the racial disparities caused by the war on drugs,” said Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers.

Pot convictions

The tally of low-level pot possession convictions in New York that would be expunged span everything from rural communities to bustling cities, according to state Division of Criminal Justice Services data.

The scope of criminal records underscored legal fallout of New Yorkers buying between 6.5 million and 10.2 million ounces of illegal pot per year, state records show.

The conviction statistics expanded upon related data that show black and Latino New Yorkers are 10 times more likely than white populations to be arrested for marijuana, despite similar pot usage rates.
For example, almost 145,000 of the low-level pot convictions were in New York City, where controversial stop-and-frisk policing tactics have fueled politically charged debates over reforming drug laws.

Outside New York City, the breakdown of convictions in select communities statewide included about 15,000 in the Hudson Valley, 4,000 in the Finger Lakes and 2,300 in the Southern Tier.

Some of the highest county totals in each region included Westchester (6,446 convictions) Rockland (1,153) and Dutchess (1,820), as well as Monroe (2,567) and Broome (1,114).

New York’s law

The new legislation builds upon New York’s history of marijuana legal reforms, including state laws that partially decriminalized low-level possession in 1977 and allowed medical marijuana in 2014.
Among the legislation’s other highlights:

• Fifth-degree criminal possession of marijuana is downgraded from a misdemeanor to a violation and is renamed first-degree unlawful possession of marijuana. It is capped at possessing more than one ounce but less than two ounces, up from the current cap of 25 grams.
• Unlawful possession of marijuana, currently a violation, is renamed second-degree unlawful possession of marijuana. It remains a violation and the quantity is defined as anything under one ounce.
• Regardless of criminal history, the bill reduces the penalty to a $50 fine for possession under one ounce, and a $200 fine for possession between one and two ounces.

If enacted, the new bill requires state legal agencies to conduct outreach and educate people with low-level marijuana possession convictions about their right to have them expunged, officially known as sealed. There are also methods to request the records be destroyed.

For further details about the legislation, contact the state Office of Court Administration at (518) 453-8650.

More: Marijuana in New York: Legalization a few votes short in Senate; hung up on NYC suburbs

Technology and law enforcement

Protesters urging legislators to pass Marijuana legislation holds a signs against the senate lobby doors at the state Capitol Wednesday, June 19, 2019, in Albany, N.Y. (AP Photo/Hans Pennink)

Hans Pennink, AP 

 

Technology will also play a key role in expunging criminal records.

California, for instance, is using computer software from Code for America, a technology access advocacy group, to identify criminal records eligible for expungement, according to a spokesman for Assemblyman Ron Bonta, D-Oakland, who championed the law.

The cases are currently being reviewed by prosecutors because California’s law allows local district attorneys to challenge or approve each one. The review and expungement effort are expected to finish in 2020.

Without automation, other legal weed states have had limited success in clearing pot-related criminal records because people had to proactively navigate a complex legal process, USA TODAY Network reported.

“The failed war on drugs has, in so many ways, wreaked havoc, damage, pain and anguish on so many Californians,” Bonta said. “This is where government can step in and make it better.”

In addition to courts ongoing work in New York, the state’s Division for Criminal Justice Services is reviewing the marijuana decriminalization bill to determine technology changes that will be necessary to automate the expungement, said agency spokeswoman Janine Kava.

In contrast, Colorado, the birthplace of legalized recreational weed, continues to struggle with expunging marijuana criminal convictions because the effort has largely fallen on local prosecutors and courts, according to Denver District Attorney Beth McCann.

“If it were done at the statewide level that would make it much easier,” she said.

Denver, for instance, recently tried to streamline the process through legal aid clinics and outreach, but just 425 out of its 13,000 people with eligible marijuana convictions applied for expungement.

Yet everything from immigration issues, technology and legal nuances seem to make undoing years of discriminatory law enforcement challenging, whether it’s automated or not, McCann said.

“We’re trying to make it as easy as possible…but we’re kind of disappointed,” she said.

More: After legalizing marijuana fails in New York, lawmakers look to Plan B
More: New York marijuana: What to know about growing cannabis, medical marijuana manufacturing

Ending police bias?

While marijuana legalization has reduced the overall number of marijuana arrests in legal pot states, people of color are still being targeted by police, the USA TODAY Network reported.

In Colorado, which in 2012 became the first state to legalize marijuana, the total number of marijuana arrests decreased by 52 percent between 2012 and 2017, from 12,709 to 6,153, according to state statistics.

But at the same time, the marijuana arrest rate for African-Americans – 233 per 100,000 – was nearly double that of whites in 2017, and that's in a state that's 84 percent white.

Denver DA McCann wasn’t familiar with the statewide arrest data but cited the recent community outreach as part of ongoing efforts to address discrimination.

“We certainly are aware of the disproportionate on communities of color of the entire criminal justice system and that’s something that we’re working on in my office,” she said.

Meanwhile in Washington, D.C., where marijuana is legal, a black person is 11 times more likely than a white person to be arrested for public consumption of marijuana.

Debate continues

One change in New York’s decriminalization bill, however, seeks to addresses concerns about higher rates of black and Latino arrests tied to smoking marijuana in public.

Currently, many low-level possession arrests involved misdemeanor charges filed in connection to burning marijuana in public.

In addition to reducing it to a violation, the new legislation would handle public marijuana smoking more like cigarettes, cigars and vaping.

Specifically, it adds marijuana to the definition of “smoking” under the Public Health Law that prohibits smoking tobacco in bars, restaurants, offices and other public spaces.

Some groups said decriminalization won't go far enough to end the historical racial bias.

“This legislation fails to address the disparate and racist enforcement ​of​ marijuana possession​ laws​ or any of the collateral consequences created by prohibition that almost exclusively impact black and Latinx communities," the Legal Aid Society said in a statement June 21.

But lawmakers said the bill is a positive step.

“More than 600,000 people in New York State have an arrest record for possessing small amounts of marijuana. The vast majority are persons of color,” Sen. Peter Harckham, D-South Salem, Westchester County, who supported the bill, but opposed legalization of recreational marijuana, said in a statement.

He said the bill "creates a process for those who have been convicted of possessing small amounts to have their records expunged or vacated, so they have access to higher education, employment opportunities and financial services.”