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New Jersey Could Force Cuomo’s Hand on Pot Legalization

The New York governor has released a plan to legalize marijuana, months after voters in the Garden State approved legalization in November. Advocates say the pressure could have ripple effects regionally.

Photo illustration by Elizabeth Brown.

New Jersey was one of four states to legalize recreational marijuana in November, and advocates say the move is likely putting pressure on surrounding states to act. 

Two days after New Jersey’s ballot initiative passed, New York Governor Andrew Cuomo renewed calls for legalization. His plan, details of which he released on Jan. 19, would allow for retail sales of marijuana. Cuomo had been calling for marijuana since 2018, after opposing it for years.

“The idea that the New York legislature would be sitting there and watch the towns of Hackensack and Union [New Jersey] reap all the tax benefits from all of Manhattan’s marijuana sales, I don’t think is going to sit very well with them,” Chris Goldstein, regional organizer for National Organization for the Reform of Marijuana Laws, told The Appeal.

Pressure of revenue lost to neighboring states could also push Pennsylvania to legalize marijuana, advocates suggest. 

Officials in the state are already embracing reform. Lieutenant Governor John Fetterman has embraced legalization as a central issue. He went on a 67-county listening tour about legalization shortly after taking office. According to a report published by Fetterman’s office shortly after the tour, 65 to 70 percent of attendees supported recreational marijuana legalization. 

Fetterman also successfully lobbied Governor Tom Wolf to support legalization publicly. Wolf had opposed legalization in his first term but changed course after Fetterman was elected.

In August, Wolf called on the legislature to legalize marijuana as a way to bolster the state’s budget after the economic crisis caused by the COVID-19 pandemic. The Republican-led legislature has made no effort to take up legalization.

“New York, New Jersey, and Pennsylvania are very much one big political region,” Goldstein said. “This is the most densely populated area of consumers. Arguably this region is the biggest market for marijuana in the country.”

Some advocates of legalization welcomed Cuomo’s proposal but said it did not go far enough.

Melissa Moore, state director for New York at the Drug Policy Alliance, said she applauds Cuomo for continuing his push to legalize marijuana but said she had concerns with his current proposal.

The plan projects that legalization would draw $300 million in tax revenue to the state annually, a figure competitive with that of New Jersey. Part of that money is slated to be used for “social equity purposes” and reinvested in “areas that have disproportionally been impacted by the war on drugs.” But aside from calling for expunging old marijuana convictions, Cuomo’s plan provides little detail about how he will address those harms.

According to Moore, the allocation of funds for social equity purposes in this iteration of Cuomo’s proposal was “in response to the organizing that has come from the advocacy community and the clear damage that has been wrought by the war on drugs in New York.” But she said the money was only a fraction of what was needed and falls short of other plans in the state legislature.

Cuomo’s proposal provides for $10 million to go toward social equity purposes for the first year. That amount is supposed to then increase by $10 million each following year until hitting a cap of $50 million annually.

Under Cuomo’s plan, while people 21 or older would be able to purchase marijuana, sales to people under the age of 21 would be classified as a felony. It is currently a misdemeanor to sell a small amount of marijuana to a person between 18 and 21 years old.

Eli Northrup, a public defender and policy counsel to the criminal defense practice at the Bronx Defenders, told The Appeal that Cuomo’s plan raises the maximum penalty for selling or even sharing marijuana with someone over 18 but under 21 to more than two years in prison from three months in jail.

“I assume what they’ll say is they want to crack down on youth usage, but marijuana is illegal right now for everybody,” Northrop said. “It shouldn’t be more illegal after it’s legalized.”

A 2019 study found no link between legalization in other states and increased use by children. In fact, the study’s authors found some indication that legalization of recreational marijuana actually led to a decrease in children using the drug.

A law passed in 2019 in New York decriminalized the possession of up to two ounces of marijuana and allowed for the expungement of some prior convictions. About 160,000 old convictions for possession of small amounts of marijuana are expected to be expunged under the law.

Although convictions for marijuana possession are not the main driver of prison incarceration, they remain a significant criminal justice and racial justice issue. Police made more than 545,000 arrests for marijuana possession and sales in the United States in 2019 alone, accounting for roughly 35 percent of all drug arrests.

Nationally, Black and Latinx people are arrested at rates nearly four times that of white people despite studies showing rates of use are roughly the same across races. Even in areas where marijuana possession has been decriminalized, Black people are still more likely to be arrested and charged with a misdemeanor.

While arrests for marijuana possession in New York have fallen precipitously in recent years, they still fall disproportionately on Black people. In New York City, 60 people were arrested in the third quarter of 2020, but 41 were Black and 17 were Latinx. Court summonses were also disproportionate: Over 800 Black people were given summonses during the third quarter of 2020 compared to 58 white people. The disparity persists upstate. According to data from John Jay College of Criminal Justice, about 12 Black people were arrested in 2017 for every one white person in upstate cities.

Support for legalization has risen sharply. In the early 2000s, only a third of Americans believed marijuana should be legal, while 60 percent opposed legalization. By 2019, the reverse was true: According to the Pew Research Center, two-thirds of Americans now support legalization.

Advocates, like Northrup, have called for the passage of Senator Elizabeth Krueger’s marijuana regulation and taxation act that has been introduced in the New York Legislature every session since 2013.

Like Cuomo’s plan, the bill allows legal sale of marijuana to people 21 and over. However, the bill differs in a few key areas including allowing home cultivation and home delivery and it does not increase the penalties for prohibited sales. Krueger’s bill also provides that half of the net revenue be reinvested in communities most affected by marijuana prohibition.

Retail sales of marijuana have not begun in New Jersey because Governor Phil Murphy declined to sign bills that roll back criminal punishments for marijuana possession and set up the legal framework for retail sales passed by the legislature in December.

Earlier this month, Murphy and lawmakers signaled a potential end to the stalemate with new legislation that would clear the way for sales.

“Marijuana laws are still affecting people in housing, in family court, in immigration,” Northrup said. “People are being stopped because police say they smell the odor of marijuana on the streets of New York. The New Jersey [legalization] brings a sense of urgency, but there should be a sense of urgency because these laws are really unjust the way they’ve been used to target certain communities.”