Brooklyn High: The Long, Strange Road to Marijuana Legalization in New York State

Illustration by Kristen Long

ON JULY 7, the state of New York legalized medical marijuana. That day, Governor Andrew Cuomo held a ceremonial press conference at the New York Academy of Medicine to sign a bill that—following months of cajoling, negotiation, and compromise—had finally made it out of the State Assembly and Senate. “There is no doubt that medical marijuana can help people,” the governor said. “We are here to help people. And if there is a medical advancement, then we want to make sure that we’re bringing it to New Yorkers.” He then alighted the podium, walked to a nearby table, and put pen to paper on a bill that had existed, in one form or another, for nearly twenty years in the state legislature. New York was now the 23rd state, along with the District of Columbia, to ratify a medical marijuana program.

Perhaps the most surprising thing is that it took so long. New York’s law, dubbed the Compassionate Care Act, has for years now obtained the kind of widespread popular support typically reserved for uncontroversial governmental programs like Medicare and public school funding. A 2014 Quinnipiac University poll found that 88 percent of all New Yorkers support “allowing medical marijuana at the recommendation of a doctor,” up 22 percent from polls a decade prior. The support doesn’t split along demographic or party lines, either—in the 2014 poll, 58 percent of Republican respondents supported medical marijuana.

Indeed, a consensus on marijuana reform is rapidly forming, borne on a bevy of grim statistics cataloguing the failure of the War on Drugs. An ACLU report released in June of last year labeled marijuana enforcement a “fiscal fiasco,” revealing that in 2010 alone New York spent nearly $700 million enforcing pot laws. Although possession has been legally decriminalized since 1977, there were more than 100,000 marijuana-related arrests statewide in 2010, 97 percent of which were for possession. The decriminalization law was passed to relieve the burden on law enforcement, but arrests have actually increased by more than 3,000 percent over the last three decades, in large part because cops, enacting a zero-tolerance-policing policy, can exploit a loophole by using stop-and-frisk to compel arrestees to expose marijuana as “open to public view,” which converts possession into a misdemeanor offense. The punishment is up to three months in jail, a $500 fine, and, in some instances, depriving students of federal loans and parents of their children due to civil neglect suits. Moreover, although blacks and whites use marijuana in equal numbers, enforcement has been discriminatory in the extreme: in New York City, “the marijuana arrest capital of the country,” according to the ACLU report, a black person is 4.5 times more likely to be arrested for possession than a white person (in Brooklyn, the ratio approaches 10-to-1).


You don’t have to squint to see that the situation is untenable. In a statement-making policy shift, Brooklyn District Attorney Kenneth Thompson announced in July that his office would no longer prosecute first-time offenders caught with less than two ounces of weed. (True to form, Police Commissioner William Bratton responded that Thompson’s stance “really does not change the working circumstances of police officers who are in the field.”) Also in July, the New York Times editorial board ran a weeklong series arguing that the federal government should repeal the ban on marijuana and enact a tax-and-regulate system. The Times compared the ban on marijuana—which is still listed in Schedule I of the Controlled Substances Act, alongside heroin and LSD, and above the likes of cocaine and methamphetamine in Schedule II—to our country’s previous failed experiment with Prohibition, during which “otherwise law-abiding citizens became criminals and crime syndicates arose and flourished.”

IN THIS ENVIRONMENT, passing a medical marijuana law in New York might seem perfunctory. But five times the bill, which had been carried by State Assemblyman Richard Gottfried (D-Manhattan) for eighteen years, got out of the Assembly, only to die in the Senate. This year, State Senator Diane Savino (D-Staten Island) took up sponsorship and led negotiations with Governor Cuomo, who insisted on a variety of restrictions. The Legislature and the governor finally agreed on a seven-year pilot program, the guidelines of which ban smoking (the drug can only be administered through vaporizing, tinctures, and edibles), limit access to only those patients with very serious and terminal illnesses, and reserve the right for Cuomo to disband the program at any time. The Department of Health will award only five licenses to growers, who may open up to four dispensaries each (Montana, by contrast, has 79 medical marijuana providers; California has about 2,000). Implementation of the program is expected to take eighteen months.

“It’s great that the law finally passed after all these years of hard work, but there are many flaws that we hope legislators will keep working on,” says Rachelle Yeung, a Legislative Analyst for the Marijuana Policy Project. “Patients will have to drive further to get their medicine, and less competition in the market means that prices will be higher.”

Critics of the law have targeted the limited number of providers and, in particular, the smoking ban, which they say places an economic restriction on patients as well as a palliative one. New York is just the second medical marijuana state to enact such a ban. “We know that smoking is easily the fastest way for patients to gain relief, because the effects of the medicine are more immediate,” Yeung points out. “It’s also one of the cheapest ways to consume medical marijuana, because there are no additional processing costs.” Managing the dosage is easier, as well.

Previously, Senator Savino had told the Wall Street Journal that eliminating smokable marijuana was a “non-starter.” The ban was an eleventh-hour concession to Cuomo, whom Yeung and other advocates suspect doesn’t like the connotations of smoking pot, no matter what it’s being used for. “‘Smoking’ makes people think of marijuana more like an illicit drug than a medicine,” she says.

Still, there is no doubt amongst marijuana reformists that the Compassionate Care Act is a step in the right direction. Its passage portends more sweeping change, which may come quickly.

“I think New York will enact comprehensive marijuana law reform in the next four-to-five years,” says attorney Adam Scavone, co-founder and director of the New York Cannabis Alliance. “It’s just a matter of moving the public.” Scavone sees similarities with the gay rights movement, which has gained so much steam in recent years that the change still left to come now feels inevitable. “Support for marriage equality was polling at 49 percent in June 2009, and by June 2011 we had marriage equality as a matter of law in New York,” Scavone cites. “I think the parallels are striking. It’s a civil rights issue, and a matter of fundamental fairness.”


ON AUGUST 7, one month after Cuomo signed the Compassionate Care Act, a who’s-who of weed reform advocates gathered at the Eventi Hotel in Manhattan for the first-ever National Cannabis Industry Alliance event in New York, sponsored by Ideal 420 Soil (“The World’s First ‘Just Add Water’ Cannabis Soil”). Senator Savino and State Assemblyman Steve Katz (R-Yorktown), a co-sponsor of the bill and recent convert to the cause, were the keynote speakers.

The event was billed as an educational luncheon and fundraiser for “New York cannabis industry professionals,” a sobriquet that might have seemed laughable a decade ago, when the mention of professionals in the cannabis industry would have elicited jokes about dreadlocks and Birkenstocks. This was something different: well-dressed lobbyists, hobnobbing over cocktails and New York strip, on the veranda of a luxury Chelsea hotel. The price of admission was $300.

What hasn’t changed, though, is marijuana’s appeal to a certain kind of libertarian-minded entrepreneur, a point Assemblyman Katz both embodied and drove home from the podium. Katz, a veterinarian, aligned himself with his fellow “warriors in the battle against pain.” He’d voted against medical marijuana in 2012 only to reverse course following a 2013 arrest for possession.

“You are representatives of the great American tradition of free enterprise, entrepreneurialism, and yes, dare I say it, free-market capitalism,” he said. It was a clarion call that could have been written by Milton Friedman. “This is one of the great business opportunities of our lifetime.”

Katz also spoke of the need for an impartial process for selecting the medical marijuana manufacturers. “How are five lucky applicants going to get licenses?” he asked, rhetorically. “Each will be worth millions and millions of dollars. The applications will be vetted as thoroughly as any application for anything in this country has ever been investigated.”

Up next was Senator Savino. “New York is often described as a very progressive state, and we are on many things,” she said. “But not everything. There is no issue on which New York has been more regressive—and I use that word—than drug policy.”

In 1973, Governor Nelson Rockefeller signed into law a series of drug-policy statutes that came to be known as the Rockefeller drug laws. They were the most draconian drug laws of any state in the United States. The penalty for selling two ounces or more of heroin, morphine, opium, cocaine, or cannabis, or possessing at least four ounces of the same substances, was a minimum of 15 years and a maximum of 25 years to life in prison. (The cannabis punishment was reduced in 1979.) To this day, there are people languishing in prison, serving life sentences for low-level drug crimes. The mandatory minimum sentences remained in place until 2009, when they were removed by Governor David Patterson. “I can’t think of a criminal justice strategy that has been more unsuccessful than the Rockefeller drug laws,” Patterson had said a month earlier, during his first State of the State address.

“That is the environment we had to craft this bill in,” Savino said, at the Eventi. Furthermore, she explained, Governor Cuomo’s belief in the medicinal value of marijuana is tenuous at best. “When you’re dealing with an individual like Governor Cuomo—who’s a tough negotiator—you have to be able to convince him that there’s real value [to the policy], and that there’s political value.

“Republicans, Democrats, upstate, downstate, liberals, independents—everyone in New York state believes marijuana should be available for medicinal purposes,” she added. “Recreational use, however, still has a long way to go, but that’s been the case in every other state.”

THIS NOVEMBER, voters in Alaska and Oregon will decide whether their states will join Colorado and Washington in allowing the recreational use of marijuana. Polls in both states suggest the ballot measures have a strong chance of passing. There is a legalization bill currently in New York’s Senate, too: the Marijuana Regulation and Taxation Act (MRTA), introduced by Senator Liz Krueger (D-Manhattan) in December.

“We’ve spent decades and literally billions of dollars to ruin people’s lives, fill up jails, and waste the time and resources of our police, judges, and court system,” Senator Krueger told me over the phone recently. “All on a drug that’s been determined to be less dangerous than tobacco and alcohol. I’ve spoken with retired narcotics agents who spent their whole lives busting people for this drug and now feel like it was a waste. I think it’s time for a change.”

To construct her bill, Senator Krueger cherry-picked the best practices from pot laws in Colorado, Washington, and a number of European nations. The MRTA would legalize recreational use of marijuana for anyone over the age of 21, taxing and regulating it in a manner similar to the state’s current treatment of alcohol and tobacco.

It’s unlikely that the bill will be passed during the next legislative session, but Senator Krueger is “optimistic that there’s some real momentum we can get going in 2015,” now that medical marijuana is done. Among her peers in the legislature, “some people are very excited about the bill and have signed on right away,” she mentioned. “Others get it but are hesitant. Elected officials are behind the public on this issue.”

I asked Senator Krueger if the Compassionate Care Act might have an unintended negative effect on ending marijuana prohibition full-stop: Now that medical marijuana was legal, might some politicians who are on the fence about the issue feel as if they’ve done enough?

She didn’t think so. “I’ve been waiting for the attacks on me from anywhere in the state,” she said. “But they’re not happening. What we’ve seen in the states that passed medical marijuana is that they quickly started discussing tax-and-regulate. I don’t think momentum will slow—I think just the opposite.”•

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