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Smoked Out in New York

Issue 263

How progressives cornered Cuomo to win best-in-the-nation marijuana reform law — and what comes next.

Steven Wishnia Apr 20

Late on a warm April afternoon in Manhattan, the breeze on a side street southwest of Midtown wafts the aromas of joints and cigar-tinged blunts.

The duos and trios sparking up in the after-work sunshine no longer have to worry about being arrested. New York State legalized pot on March 31, when Gov. Andrew Cuomo signed the Marijuana Regulation and Taxation Act, one day after it passed by votes of 40–23 in the state Senate and 94–56 in the Assembly. The law allows possession of up to three ounces, and smoking is now legal almost anywhere cigarettes are permitted.

Ten years ago, at the peak of New York City’s stop-and-frisk era, more than 100 people a day were busted for possession. About 85 percent of them were Black or Latino.

“Today is an historic day for New Yorkers,” Sen. Liz Krueger (D-Manhattan), the bill’s lead sponsor, declared on the Senate floor March 30. “The bill we have held out for will create a nation-leading model for legalization.”

Eighteen states now allow growing and selling cannabis for non-medical use. New Jersey legalized it in February, and New Mexico and Virginia followed New York within a week. But it is unlikely that reefer retailers will open before late next year, as it will take time to license and establish businesses.

There was some opposition. Sen. Philip M. Boyle (R-Suffolk) said marijuana is a “gateway drug” that leads to heroin, and that states where it is legal have seen “carnage on the streets” and “people going to work stoned.” Sen. Anna Kaplan (D-Nassau), one of three Democrats to vote no, said legalization was premature when there’s no measurement equivalent to blood-alcohol concentration for detecting intoxicated drivers, and “rates of addiction are skyrocketing.”

But overall, the debate between Gov. Cuomo and the Legislature’s leadership was over how to structure the industry to ensure “social equity” for the people and neighborhoods most affected by prohibition and prevent domination by the fast-growing corporate chains that have the money and political connections to navigate an expensive and cumbersome application process. In other words, that the street dealer in Brownsville should be able to move from selling $20 sacks to opening a legal weed shop.

“It’s absolutely important that people who have been part of the legacy market don’t get shut out,” says Melissa Moore, state director of the Drug Policy Alliance. (“Legacy market,” a term borrowed from tech corporations, is a euphemism for “old-style pot dealer or grower.”) The system should have “as many entry points as possible for people with limited capital,” she adds.

Low or nominal application fees are important, concurs Carly Wolfe, state policy director of the National Organization for the Reform of Marijuana Laws (NORML).

Unlike New York’s 2014 medical-marijuana law, the new law prohibits “vertical integration,” in which one company can grow, process, and retail cannabis. Instead, like the state’s alcohol regulations, it will separate cultivation, distribution, and retail. That “automatically breaks up the process for Big Cannabis to create a monopoly,” says Jawanza Williams, organizing director for VOCAL-NY, a grassroots group that builds power among low-income people directly affected by HIV/AIDS, the drug war, mass incarceration and homelessness. The exceptions are that the companies in the medical system will be allowed some retailing — with the proceeds going to social-equity programs — and “micro-businesses” can do all three, much like a craft brewery can sell six-packs.

The law sets a goal that half of new licenses should go to social-equity applicants, including small farmers. It earmarks 40 percent of tax revenue for reinvestment in communities most affected by the drug war. It also automatically expunges convictions for marijuana offenses that are no longer illegal, and the smell of weed will no longer be probable cause for a police search except as evidence of impaired driving.

Pot sales will face a 13% tax, plus a half-cent per milligram on THC content; for a 7-gram bag of buds that’s 15% THC, that tax would be $5.25. Individuals may grow up to six plants at home. Local governments will be allowed to ban retail sales if they do so by Dec. 31, with sentiment for that appearing strongest on Long Island.

Employers will be barred from penalizing workers for marijuana use off the job, unless it impairs their performance or violates licensing regulations or federal law. The law also requires all license applicants to agree in writing not to interfere with union attempts to organize. For applicants that have 25 or more employees, the state Office of Cannabis Management (OCM), the agency that will be created to oversee the industry, must give priority to those who already have labor-peace agreements or used union labor to build their facilities.

New Jersey and California also require labor-peace agreements. Colorado’s pot industry is completely nonunion.

How the state will reach its social-equity goals, however, remains up in the air. Key issues, such as whether the state will limit the number of licenses and how it will define and enforce the 50-percent requirement, will be up to the OCM.

“We’re going to try to influence the OCM, but right now, there are no rules,” says Nancy Udell, a longtime activist with Empire State NORML. But, she adds, “we’ve seen what happened in other states. We know what to do.”

Illinois, she notes, has social-equity provisions in its law, but “didn’t really put in a mechanism to make it happen.”

“Obviously, we don’t know what will happen until licenses are issued,” says Williams. But, he adds, the law has enough specifics to define “what their job is.”

“We don’t get to win and walk away,” he concludes. “We have got to keep an eye on them.”

What Changed Politically?

How did New York politics evolve from the days when Mayor Michael Bloomberg, whose stop-and-frisk policing policies put petty pot busts of young Black men at their core, was regularly lauded for running New York City with unprecedented efficiency, to legalization winning an almost two-thirds majority in the Legislature? Activists identify four main factors.

First, organizing. The Start Smart Coalition, founded about six years ago to advocate legalization and social equity, grew to more than 70 organizations from Long Island to Buffalo, including the Working Families Party, the state NAACP, LatinoJustice PRLDEF, Desis Rising Up & Moving, and two large labor unions — 1199SEIU and 32BJ SEIU.

Second, the ethnic disparities of pot busts were so extreme that their racist overtones were “painfully obvious,” says Udell. It wasn’t like marijuana was “effectively legal” for white people, but it was also obvious that they made up a lot more than 15% of the pot smokers in New York City. The racial disparities were also extreme on Long Island and in Albany, Buffalo, and Rochester, says Moore.

Third, the growth of public support for legalization. More than 40% of the U.S. population now lives in states that have legalized it, says Wolfe. New Jersey legalizing made it “untenable” for New York to retain prohibition, says Moore, as pot shops would be open a short PATH train ride from Manhattan or a quick drive from Rockland County.

Finally, political changes in Albany. Democrats won a solid majority in the state Senate in 2018, ending decades of control by Republicans. And Gov. Cuomo, who opposed legalization until a few years ago and had proposed a separate bill with much vaguer social-equity provisions, was weakened by the COVID nursing home and sexual harassment scandals.

Cuomo “was not interested in repairing the structural harms,” says Williams, and also wanted to maintain peripheral criminalization such as keeping public smoking illegal and having the smell of pot be a justification justification for police searches. The governor won concessions on the THC-content tax, says Udell, but overall, “he wasn’t in a position to say, ‘no, my way or the highway.’”

Williams credits years of “consistent organizing.” Yes, Cuomo was weakened, he says, “but also, we were ready.”

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