Marijuana plants
To understand how rapidly New York overhauled its marijuana laws, look no further than its impact on the criminal justice system.
Fewer and fewer people are being arrested on marijuana offenses in New York, underscoring the major effect of the drug’s decriminalization in 2019 and, ultimately, its legalization this past March.
From April through October of this year, just 116 people statewide were arrested on a top-level misdemeanor or felony charge related to marijuana possession or sale in New York, data compiled by the state Division of Criminal Justice Services shows.
And as of early October, 11 people remained incarcerated in state prisons with a top crime of either criminal sale or possession of marijuana in the first-, second- or third-degree, according to the state Department of Correction and Community Supervision.
A top charge is the most severe offense someone is arrested for.
The drop-off in marijuana arrests has been stark as state lawmakers and then-Gov. Andrew Cuomo reshaped the state’s laws related to the drug.
In 2020, after New York lawmakers took steps to decrease marijuana penalties but before they legalized certain amounts of the substance, there were 2,720 misdemeanor or felony marijuana arrests.
Compare that to 2017, when there were 28,239 misdemeanor marijuana arrests alone, according to a study by the John Jay College of Criminal Justice.
Advocates say the numbers indicate the success of centering social justice in the Marijuana Regulation and Taxation Act, the law approved by Cuomo and lawmakers this past March, allowing for adult use of recreational marijuana in the state.
The law immediately authorized the possession of up to three ounces of marijuana and will eventually allow New York residents to grow marijuana plants at their residence for recreational use. Selling cannabis without a proper license, however, remains illegal.
Previously, lawmakers voted in 2019 to reduce many marijuana crimes to a violation, an offense that would generally draw a ticket.
But advocates also warn that the state’s arrest numbers might not show the full extent of marijuana criminalization, as people could face other charges based on the presence of marijuana.
Mary Kruger, executive director of the Rochester chapter of the National Organization for the Reform of Marijuana, said the reduced arrest numbers are a gauge that the law is having the intended impact.
She added that the reason why advocates fought so hard to get this bill passed was that they didn’t want the harms of prohibition to be an afterthought as they were in some other states.
“But in our legislation,” she added, “it was always in the forefront and it was a non-negotiable to have this be something that was included.”
When the measure passed in March, the law allowed adults over the age of 21 to carry, display and consume three ounces of marijuana.
More than 100,000 people are expected be able to get their prior records expunged under the new law. The Office of Court Administration has up to two years to complete the task, though records are being suppressed in the interim.
The act also sets out the goal to give 50% of licenses to social equity applicants such as disabled veterans, women, and those disproportionately impacted by the war on drugs, such as people of color.
It also generally removes the order of cannabis and the presence of cash near cannabis as a reasonable cause that crime had occurred.
Law enforcement officers can still use the odor of burnt cannabis when investigating whether a person is operating a motor vehicle while impaired by drugs or alcohol. But those officers still can’t use the smell of cannabis to search an area of the vehicle that’s “readily accessible to the driver.”
The law also says that possession of more than three ounces of cannabis will be a violation that is punishable by a fine. There are still felony offenses for charges such as first-degree criminal possession, which stipulates that the person has more than 10 pounds on their person.
For the 11 people who remained imprisoned on marijuana-related charges in New York, clemency and commutation should be considered for their offenses to “fulfill some of the promises of legalization,” said Natalie Papillion, policy advisor and director of strategic initiatives at the Last Prisoner’s Project.
Started in 2019, the project was founded out of a “belief that no one should remain incarcerated for cannabis offenses,” according to its website.
“Some of those 11 people, it may end up being more, may be eligible for relief or release once those re-sentencing provisions happen,” Papillion said. “And so there are a couple different ways we can basically end cannabis-related incarceration in New York in the near term.”
The 11 individuals were convicted under Penal Code 221, the stricter marijuana law that has since been repealed, according to DOCCS. Four of those people were sentenced this year.
The MRTA does allow for re-sentencing for some people convicted of marijuana offenses, particularly for a person who has been convicted of a charge that is no longer deemed illegal.
Joseph Bondy, a New York City-based criminal defense and cannabis business attorney, said that not many people go to prison for cannabis as they usually plead down to a lower offense.
Bondy noted that arrests are a greater metric of the disruption that a marijuana offense can have on someone’s life.
Arrests are down in that category, too. For instance, when New York’s cannabis law was passed in the first quarter of this year, New York City police had around 160 marijuana arrests, records show. In the third quarter, there were around 25 marijuana arrests, up from eight in the second quarter.
Although criminal marijuana laws have been relaxed, Bondy noted, he fears that people will still be arrested for cannabis-related offenses. So whereas the person may not be charged with a marijuana offense, there could be more tax, business, and organizational prosecutions.
“So there’s going to be a lot more marijuana prosecutions for different things,” he said. “Your government will not be giving up.”
He added, “They’re not just throwing in the towel.”
Bondy said the marijuana legislation is a watershed moment. And that many of the clients whom he once represented criminally are seeking new opportunities to join the legalized market.
“It’s magic,” he said, remarking on the change of fortunes.
Includes reporting by New York State Team editor Jon Campbell.
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