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How the Tortured History of Cannabis Law In New York Has Delayed Legalization

Prior to 1914 cannabis was legal in New York. However, in 1914, the New York State legislature passed The Boylan Bill, which regulated the sale and use of habit-forming substances. Although the bill did not list cannabis as prohibited, the New York City Board of Health subsequently amended the City’s Sanitary Laws and added cannabis to its prohibited drug list. This required all those who wanted to possess cannabis to have a prescription. Violations of the Sanitary law were a misdemeanor, punishable by a fine and/or a jail sentence of up to six months. Nonetheless, cannabis was not prohibited under New York State law from 1914 until 1927 and remained at least partially legal in New York City. In 1927 the State Legislature banned the possession, sale, and distribution of cannabis, calling it a “habit-forming drug.”

In the 1930’s public opinion in the U.S. towards cannabis shifted in a negative direction. This was in part due to the anti-cannabis campaign started by Harry Anslinger, a government employee who demonized cannabis as dangerous and used racism to stoke fear among white Americans about its use. As a result, in 1937, Congress passed the Marihuana Tax Act of 1937 and for the first time in U.S. history, cannabis was subjected to regulation and taxation by the federal government. Despite federal and local prohibitions, the cannabis trade continued in New York. Then, in 1939, NYC Mayor LaGuardia created a committee to investigate the use of cannabis in the City. However, the investigation backfired when the commission released its report in 1944, concluding that cannabis was not associated with the societal ills that had been portrayed by Anslinger. Despite these findings, New York cannabis restrictions remained.

Harry Anslinger

Harry Anslinger was a racist hatemonger who masterminded the War on Drugs.

Following the counter-culture movement of the 1960s, in 1970, as part of President Nixon’s anti-drug efforts, Congress passed the Controlled Substances Act, which made cannabis a Schedule 1 drug, the most restrictive category. Following this trend, in 1973, New York passed its own strict drug laws, known as the Rockefeller Laws, which made the sale of two or more ounces of cannabis or possession of more than 4 ounces, punishable by a minimum prison term of 15 to life, and a maximum term of 25 to life.

Fortunately, in 1977, the State decided to partially decriminalize cannabis by making possession of 25 grams or less an infraction with a $100 fine. However, the State did not decriminalize the use of cannabis in public, and in fact, public use remains a misdemeanor crime punishable by jail even today. Unfortunately, this led to a situation where many New Yorkers were, and still are, criminalized for having small amounts of cannabis so long as they are “open to public view.” While these mild reforms created a small dip in cannabis arrests in the 70s and 80s, arrests skyrocketed throughout the 90s and 2000s, especially in minority neighborhoods, largely under the guise of the “open to public view” provision.

With cannabis arrests and over-policing in minority neighborhoods out of control, highlighted by the Stop and Frisk litigation and a record-breaking summons class action (brought by our firm), police reforms began to take shape. One of the first areas of reform was cannabis laws, and in 2014, Mayor DeBlasio directed the NYPD to cease arrests and instead issue summonses for possession of small amounts of cannabis, though “public view” arrests persist. In addition, in July 2014, Governor Cuomo signed legislation permitting the use of cannabis for medical purposes in New York once again. And finally, in 2018, after the Department of Health conducted a study recommending legalization in the State, Cuomo announced that he would make legalization a priority. However, it has been over two years since this announcement, and his legalization promises have not yet come to fruition.

Despite Governor Cuomo’s ongoing efforts to legalize marijuana in New York, the legislature has been unable to agree on the specifics of the law.

Since 2018, legalization has had fits and starts. While put forward in Cuomo’s 2020 budget, lawmakers could not reach an agreement on the components of the law. To be fair, the COVID-19 pandemic put a wrench in things, but even now with a supermajority of Democratic lawmakers in the legislature and a Democratic Governor, lawmakers can’t seem to get their act together. Different priorities between Cuomo and lawmakers have stalled the passage of the law. Meanwhile, people are still being arrested and cited for cannabis possession and arrest numbers continue to rise, while politicians haggle over minutiae in the proposed legalization law.

That said, the various stakeholders seem to agree on most of what legalization should look like in the State. While many lawmakers have submitted their own proposals, the main competitors are the Marijuana Regulation and Taxation Act sponsored by Senator Liz Krueger and Assembly Member Chrystal People-Stokes, and Governor Cuomo’s proposal called the Cannabis Regulation and Taxation Act. These officials all agree that cannabis should be fully legal for personal use, that sales should be taxed, that individuals under the age of 21 should not be allowed to use or possess cannabis, and that an independent body to regulate the legal market should be created. However, these political actors can’t seem to agree on where tax revenues from sales should be allocated, what punishment should be doled out to minors or unlicensed sellers for possession/sale, how far to go in erasing the criminal convictions of people who had previously been convicted of cannabis possession, and how far the anticipated law should go to right the wrongs of nearly a century of bad policy. In the end, there is hope that an agreeable law is around the corner, but New York’s tortured history keeps creeping back up and is difficult to unwind.

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